Conflicts between copyright owners and politicians for unauthorized use of works in political campaigns is not unusual. Often it’s a musician or record label that has not agreed to a theme song’s use, occasionally, it’s a news station that does not want to help a candidate it doesn’t support, but for Senator Russ Feingold, it’s the NFL, the National Football League, big granddaddy of American football (just called “football” for the rest of this post).
Senator Feingold’s ad uses a number of football clips, one of which is from an NFL game. The NFL, having not authorized the use of the clip, contacted the campaign and the campaign agreed to edit the ad to remove the clip. Ceased and desisted. Settled without a law suit sounds pretty good. But is it really the best outcome?
Senator Feingold is running for re-election in Wisconsin. For Wisconsinites, football is not just a sport, it’s part of our identity; it’s the Green Bay Packers. The Packers team is almost 100 years old and is the only non-profit, community owned major sports team in the United States. The team may be based in Green Bay, but it belongs to the entire state. This post, despite the spelling and grammar errors, explains the relationship between the team and its fans well.
The NFL clip at issue in Senator Feingold’s commercial shows a player dancing in the end zone and pretending to moon the crowd. Not just any player. Randy Moss, formerly (and just recently, again) of the Minnesota Vikings, an arch enemy team. (We’re talking Germany-Holland fussball here. When the Packer star quarterback decided to go play for the Vikings, he became forever linked to the top traitors in history.) The clip is from 2004, but that particular victory ‘dance’ was so offensive, it is still talked about.
Now that you have a bit of background, here’s why the ceasing and desisting may not have been the best outcome. The Feingold ad [video] uses various football clips, the others not owned by the NFL. All the clips show players celebrating. The NFL clip is the only one that shows a recognizable incident; the only one that is highly emotionally charged. It’s the clip that really makes the Senator’s point – that the pre-mature celebrating of his opponents is disgusting and something to be abhorred. Removing the clip changes the tone of the ad. This is one instance where a licensing deal would have produced a better result, keeping the tone of the ad intact. Of course, the big question is: What would it cost?