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This election season, the candidates have taken "singing for their supper" pretty literally. The Obama and Romney campaigns have played tit-for-tat with a series of song-related calculated moves--and may have landed in some copyright trouble. On Tuesday, BMG, the music managing company, pulled an attack ad from the Romney campaign, "Political Payoffs and Middle Class Layoffs," featuring President Obama singing Al Green's "Let's Stay Together."
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Then later on Tuesday, the raw footage used in the ad--a viral video in its own right--started to disappear.
How did we get here? Let's review:
On January 20, President Obama broke out into song while speaking at a fundraiser at the Apollo theater in New York. Obama sang a few words of Al Green's hit with the reverend himself just a few feet away in the audience. The footage of Obama's musical moment went viral online, spawning multiple versions of the video on YouTube and racking up hundreds of thousands of views.
Not to be outdone, on January 30, the eve of the Florida Republican primary, Mitt Romney led a campaign crowd in singing "America the Beautiful." His balladeering went less smoothly, with negative comments on videos criticizing his skills.
The campaigns left the singing to the pros for a few months, until last weekend when the Obama campaign released an attack ad using the audio from Romney's "America the Beautiful."
Entitled "Firms," the ad pans over empty factories and boardrooms with newspaper quotes about his alleged job outsourcing during his tenure at the helm of Bain Capital. Then it flips to shots of glittering tropical waters and pristine beaches, with news clips referencing Romney's offshore bank accounts.
After four days online, the video has nearly 1.5 million views.
Again, the Romney campaign returned defensive fire, releasing a similar ad Monday, featuring Obama's rendition of "Let's Stay Together," accusing of political cronyism. "Lots of love for the donor class," the ad says. "What about the middle class?"
After 24 hours, the Romney video was taken down, replaced by YouTube's new copyright violation screen.
"'Political Payoffs And...' This video is no longer available due to a copyright claim by BMG_Rights_Management."
Soon after, video clips of Obama singing "Let's Stay Together" have become unavailable in the United States (although they're apparently still watchable outside the U.S.). The videos, originally uploaded by news organizations such as ABC News and the Associated Press, have now been replaced with the message: "The uploader has not made this video available in your country. Sorry about that."
A Romney spokesman said the campaign intends to fight the copyright violation. "Our use was 100% proper, under fair use, and we plan to defend ourselves."
Ars Technica writes that the Romney campaign has a "clear cut" case for 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," Ars Technica associate writer Timothy Lee says. "And it's hard to imagine the ad harming the market for "Let's Stay Together."
"Yet the "notice and takedown" process established by the DMCA and apparently utilized by BMG Rights Management in this case doesn't give the Romney campaign much recourse. It can file a counter notice stating that it believes its clip to be fair use, but YouTube is required to wait a minimum of 10 days before putting the video back up. In a campaign where the news cycle is measured in hours, 10 days is an eternity."
A BMG spokesman defended the action, in a statement to the Huffington Post.
"Our duty is to protect the rights of our songwriters and other clients without regard to political party or cause," the statement says. "In this case, the use of the music in question was not approved by the rights holder. As a result normal take down procedure was followed."
