Score one for the Crooner in Chief.
An attack ad that tried to use President Barack Obama's famously smooth rendition of Let's Stay Together against him has been removed from YouTube for copyright infringement.
The ad, produced by the Mitt Romney campaign, was titled Political Payoffs and Middle-Class Layoffs, an allusion to the Romney camp's claim that the president funneled billions of dollars in stimulus money into the pockets of his own campaign donors. The ad was pulled from the video-sharing site after a complaint by BMG Rights Management, one of the largest publishing companies in the world, which manages the rights to the 1972 Al Green hit.
A Romney spokesperson told the Washington Post that the clip clearly falls under fair use, a provision in intellectual property law that permits limited use of copyrighted material for the purposes of criticism and commentary. Several other clips of Obama singing the song are still on YouTube, including a version uploaded by the Associated Press that has garnered more than 2.5 million views. Obama sang the song at a fundraising event in New York in January.
The Romney team, which has vowed to fight for the attack ad's prompt return, filed a counter-notification with YouTube under the Digital Millennium Copyright Act of 1996. YouTube could reverse its decision, but by law the site would have to wait 10 days before putting the ad back.
Fair use is a notoriously blurry segment of copyright law, with disputes often ending up in federal court. Judges look at each case individually, but they generally use four factors before making a ruling: the purpose of the use, the nature of the copyrighted work, the length of the portion used, and the effect of the use upon the potential market.
Some experts think team Romney has a strong case. Writing for the website Ars Technica, journalist Timothy B. Lee said the video in question is a clear-cut case of fair use. Obama's singing is a core part of the ad's message, and copyright law explicitly mentions commentary and criticism as justifications for fair use, Lee wrote. And it's hard to imagine the ad harming the market for Al Green CDs or iTunes tracks.
The Political Payoffs video was a response to an earlier ad by the Obama campaign that featured Romney fumbling his way through America the Beautiful. Headlines about Romney's offshore accounts and Bain Capital's habitual outsourcing are shown over the Republican candidate's cacophonous singing.
America the Beautiful is in the public domain.