On Saturday the Mitt Romney campaign released this devastating ad:
It didn’t take long before Tom Brokaw flexed his muscles, summoned NBC lawyers and demanded his image not be used in a political ad. He proclaimed, “I am extremely uncomfortable with the extended use of my personal image in this political ad.”
You know, tough. His level of discomfort is irrelevant, and he should be ashamed of trying to silence core First Amendment speech.
Any NBC claim of copyright infringement would be frivolous, for certainly use of the footage of a historic broadcast falls within the “fair use” exception. As for Brokaw himself, Florida has a “right of publicity” statute that covers unauthorized use of another person’s image for profit, that is to generate sales of a commercial good. It’s not there to shut down political speech. Moreover, “Regardless of the extent of state law protections, the right of publicity is necessarily in tension with the First Amendment’s protection of freedom of speech. Thus, while the unauthorized use of a name or likeness in an advertisement would be considered a commercial use implicating publicity rights, the use of an individual’s name or likeness for the purpose of communicating news or expressing ideas would generally be protected by the First Amendment.” (By the way, a Newt Gingrich ad featuring Mike Huckabee without his permission generated a “request” to take down the ad, but Huckabee has no legal recourse, either.)
In any event, those who didn’t see the ad before the brouhaha certainly will now. The Romney campaign should send Brokaw and the legal attacks dogs at NBC roses for assisting their effort.