ABC News has asked Swift Boat Veterans for Truth to stop using a clip of a Good Morning America interview with John Kerry in this ad [MOV], citing copyright concerns. The clip is edited to make it look as if Kerry is contradicting his statements in a 1971 interview, with which the 2004 GMA interview is interleaved.
It’s rather dastardly; a careful listen shows that Kerry says nothing inconsistent with the proposition that he threw away his own ribbons and the medals of other veterans. And at the end, it edits together two clips — “We threw away the symbols of what our country gave us” / “And I’m proud of that” — which make it seem that Kerry is expressing pride about something he didn’t express pride about in the interview.
But not all things that are dastardly are copyright infringement, and this ad is pretty clearly fair use. The purpose and character of the use is political advocacy, also weighing in SBVT’s favor. The work is more or less entirely factual — it’s video of what Kerry actually said. This weighs in favor of SBVT. The ad only used very short clips compared with the entire interview; indeed, this out-of-context use is what ABC complains about, but it weighs against ABC in the fair use analysis. And a 30-second political ad is not a market substitute for a newsmaker interview on GMA, so the final factor weighs in favor of SBVT.
So they’re jerks, but they’re not infringers.
UPDATE: Commenters below ask whether Kerry could go after SBVT on a defamation, slander, or libel theory. However, Kerry is about as public as a public figure gets, meaning the bar for such claims is pretty high. New York Times v. Sullivan says to prevail, Kerry would have to show that SBVT’s statement was false and that they made their statement “with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The falsehood prong might be hard to prove. Let’s take the most egregious bit — the “We threw away the symbols of what our country gave us” / “And I’m proud of that” edit. What falsifiable statement is SBVT making? At the very most, they might be saying that Kerry has expressed pride in throwing away the medals. The statement of pride is ambiguous enough that it would be hard to rule any implications false. And SBVT could argue, probably successfully, that they were just saying that Kerry said both of these things, and that the white flash in between makes clear to the viewer that they weren’t said one right after the other. SBVT would probably prevail, since it would be very difficult to prove that SBVT was reckless or knowingly lying in this situation.
Although in situations like this the fact is aggravating, merely misleading speech is protected by the First Amendment.