October 7, 2010

Did professor of law just accuse Feingold of theft?

It's less than clear but he's left few options:

"It really is hard to see this as an honest mistake. Ad agencies and campaigns are lousy with lawyers and no lawyer or agency in business for more than a week and a half would have failed to recognize this issue."

It was a boneheaded mistake, is what it was, not a dishonest one. Some mavericky type decided to play the enormous spread against the National Football League's taking umbrage at the Feingold campaign's use of the three-second clip.

If the professor of law is right that no marginally conscious attorney would have failed to recognize the issue and copyright and fair use concerns were indeed considered, then the decision wasn't a matter of "Let's steal it," it was "Let's see if the NFL fails to object."

Copyright protections are not inviolate and as a matter of fact (and law) the Constitution directs Congress to regulate their limitations.

Esenberg is correct, at least, in that nobody should have seen that deliriously hopeful prophecy as anything other than a caffeine-inspired phantasm. And the chances subsequently that the Feingold campaign would battle the NFL's cease and desist letter — the appearance of which likewise should have been factored into the calculus from the outset as a 100% proven statistical inevitability — are Nil, for a whole host of obvious political and financial reasons.

And why not: They wore ersatz Bears uniforms

What gets me is why the Feingold campaign mandarins, after procuring and assembling a film crew and a troupe of football actors on the Nicolet High School gridiron, didn't deck a couple of them out in faux Minnesota Vikings garb and reenact Randy Moss's infamous this-is-me-showing-you-my-bum scene. There's likely not a single Wisconsinite who wouldn't both recognize and be amused by it.

They could have even mimicked the voiceover: "That's disgusting!"

Then the campaign wouldn't have been forced to edit the offending sequence, and rerun an ad* that just looks ridiculous, especially in light of the recent uproar. I reckon the best thing Feingold can do at this point is to stop running it, bury the thing, and forget about it.
Charlie Sykes's criticism of Russ Feingold's use of NFL footage in his ad is [not] partisan hyperbole.
Yeah right.

* By the way, speaking of being lousy with lawyers, it isn't celebration per se that draws a flag, it's "prolonged, excessive, or premeditated celebration," the rule thanks to Mark Gastineau and the Fun Bunch.

@PolitiFactWisc had best blow that sucker out of the water.

eta: Predictably, the Milwaukee Journal-Sentinel's lemming-like right-wing calumnist Patrick McIlheran has crawled on board with Prof. Esenberg's intimations of lawbreaking aforethought:
[Feingold] got nailed within hours by the NFL for an ad that illicitly used footage and commentary that he didn't have permission to use.
You don't need permission to put to certain prescribed uses copyrighted material in lots of instances, and it doesn't make a difference how many times the NFL repeats its familiar admonition.

The league's protective rights would be every bit as enforceable without the announcement. It just so happens that this particular league is notoriously vigilant over its intellectual property domain and it can afford the required small army of silk-stockinged combatants.

The Feingold camp can't, which is why it was such a dumb move.

Of all people to chide Feingold over this episode, the last should be a newspaperman who apparently spends much of his time copying and pasting copyrighted material onto the virtual pages of the Journal-Sentinel without the copyright holders' "express written permission."

That "illicit" stuff is no more or less protected than is the NFL's.


John Foust said...

Sykes' blog is full of cut-and-paste. All fair use, I'm sure.

Ordinary Jill said...

Is it possible that the Feingold campaign thought the NFL's response would draw attention to the fact that Feingold ran an anti-Randy Moss ad? I haven't watched the actual ad, but I'm aware of its existence, and given that the Vikings just brought Randy Moss back to Minnesota, it seems rather timely and topical to bash him. After all, Feingold has made a point of his Packer partisanship on the campaign trail before.

illusory tenant said...

Clever ruse, poor execution, I guess is what it boils down to (IMO).

Anonymous said...

Intentional misuse to get even more exposure. Even the negative exposure around the ad is good. Well played. Being redefined as the guy who used that 3 seconds of NFL footage in your ad is way better than letting Johnson wrap words around you. The delicate legal interpretation would come in when/if this went to court. It was never going to go to court. So somebody called a foul, and they paused, got more exposure, and proceeded, and got more exposure. Gaining yardage. Go Feingold!!!

illusory tenant said...

Even the negative exposure around the ad is good.

I don't know about that.