Music publisher BMG Rights Management has reportedly filed a notice under the Digital Millennium Copyright Act (DMCA) leading YouTube to remove video of a Mitt Romney campaign ad featuring President Obama’s rendition of Al Green’s “Let’s Stay Together”. BMG is also seeking removal of other clips of Obama singing the 1972 hit.
The Romney campaign has reportedly re-posted the ad to YouTube competitor Vimeo.
The ad features Obama’s singing in the background while displaying headlines from articles alleging that he “stayed together” with campaign contributors by rewarding them once in office.
As Ars Technica notes, the ad’s use of the song is likely a “fair use” exempt from liability under the Copyright Act. The political ad uses only the small part of the tune that Obama famously sang during a speech earlier this year and is highly unlikely to affect the market for Green’s original recording.
The Romney campaign has reportedly responded to the take-down notice with a counter-notice asserting a fair use defense but the issue is unlikely to be resolved while the ad is still current given the statutory timeframe. The campaign could also seek penalties against BMG for filing a bad faith takedown notice. The Electronic Frontier Foundation sued another music publisher, Universal Music Publishing Group, after Universal filed a notice demanding takedown of a family video of a toddler dancing to a Prince song, arguing that Universal acted in bad faith by failing to consider fair use before issuing the notice. YouTube’s compliance with the DMCA’s procedures immunizes it from liability for removing the video.
Meanwhile, Romney has no similar recourse under copyright law against Obama for airing an ad featuring Romney singing “America the Beautiful” along with headlines regarding outsourcing allegations since that song is in the public domain and not subject to copyright protection.
Politicians including John McCain, Newt Gingrich, Sarah Palin, and Michele Bachmann have been sued or threatened with litigation in recent years for using pop songs in campaign ads or at political events without the artists’ permission.
