Sports and Politics

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?

"Wherefore art thou Roneo?"

As a reader of, and subscriber to, countless intellectual property publications I was not surprised that I couldn't remember the title Copyright and License. It sounded more or less like the other largely descriptive or generic titles that haunt the field of IP publishing. Anyway, I opened the email with that subject heading and was comforted to read that

"You received this e-mail because you subscribed to this Newsletter. If you don’t see the images in this e-mail newsletter, or if you prefer to read the online version, click here to link to the online archives.

To ensure successful delivery of your newsletters, add us to your Safe Senders list".

At this point my curiosity was engaged. While many people rage about the iniquities of intellectual property, none has so far interrupted the inward flow of IP-related newsletters that has been a major feature of my existence over the past six years. I read on:

"Important Note to Our Newsletter Subscribers: WE strongly urge you to add us to your Safe Senders list. Even if you have consistently received newsletters in the past, you should take this quick and easy step to ensure receipt going forward.

Many e-mail service providers -- in particular Google Gmail and Yahoo -- are blocking mass mailings to their users, even e-mails users have requested. Policies and practices change from day to day; the only way to ensure that you receive all requested newsletters now is to add us to your Safe Senders list. Regardless of your service provider, please take a moment to do this today".

Now I was getting really interested. While Google in particular has come under fire from the copyright lobby for its Book Search project, for the unauthorised links generating thumbnail images and for providing direct hyperlink access via its search engines to news and other textual materials, never did it occur to me that ISPs might retaliate against the copyright lobby by blocking the distribution of newsletters on copyright and licensing. But I know people who work there ... surely such reasonable souls wouldn't do something like that!

So I clicked the link (not reproduced here) and sat back in expectation of reading some totally controversial material on copyright and licensing, hot enough to block. Can you imagine my disappointment when the link resolved to Canadian Pharmacy, #1 Online Drugstore, offering Free Sample Viagra and similar products. The irony is that Copyright and Licensing and Viagra do indeed both address the same subject matter: reproduction.