The Clinton Ad and Fair Dealing

The hot video of the week is the remarkable mash-up of the Apple 1984 advertisement, which in its new incarnation stars Hillary Clinton and promotes Barack Obama.  The video has been viewed more than two million times and received considerable mainstream media news coverage.  An Associated Press story caught my attention as it discussed the prospect of Apple suing the creator of the Clinton version.  The article concludes that a suit is unlikely, given the strong fair use protection for political speech.

That may be true from a U.S. perspective, but would the same analysis apply in Canada?  It's a question that needs an answer since the importance of this form of political speech is likely to grow on both sides of the border and with an election on the horizon, there is every reason to believe that we will see creative clips featuring Canadian political leaders.  Much like the minor controversy involving the Conservative Party's attack ads on Dion, which raised questions about copyright clearances, it is by no means certain that a Canadian version of the Clinton ad would be protected.  Given our limited fair dealing provision, it would be difficult to bring the ad within the boundaries of research, private study, criticism, or news reporting.  Indeed, the closest exception is parody, however, Canada does not have a parody exception.  This form of political speech should surely enjoy protection, yet Canada's policy makers have been so focused on unnecessary DRM provisions, that we've neglected the reforms that really matter.


  1. Problem for Canada?
    You really think so? Our politics are a three-ring circus to begin with ;)

  2. Thanks for the analysis. I almost forgot we have our own fair dealing provisions and simply and incorrectly assumed it would be ok here in Canada.

  3. Crosbie Fitch says:

    You can’t sue an anonymous creator
    For a political video it is probably tolerable for the creator to remain anonymous (or pseudonymous). They could reveal their identity several years hence when copyright is abolished.

    So it’s really open season as far as political videos go, whether or not you infringe copyright in the process. The biggest problem is making a political video that people will want to share with their friends.

  4. Allan Sorensen says:

    Michael, I wonder if Andy Warhol got clearance for the photographs he used.
    Particularly since he then sold the paintings – likely at a better profit than the original photographs got.

    When I copy a CBC program and then re-edit it in such a way as to give it a different point of view, is that fair use?
    Am I free to then sell it, or simply post it to my website that contains ads?
    When I take a YouTube video and re-mix it is that fair use?

    When I invest millions in a production, are people subsequently free to use my product as they wish?
    May I photocopy money?
    May I re-publish Conrad Black, or only do a re-edit that makes him say things that make him look stupid?

    If I’m walking down the street and someone takes my picture, are they allowed to sell or profit from that picture without my consent – as in TV and newspaper reporters? Are they not essentially people involved in what is primarily a commercial enterprise, while I’m also a reporter by virtue of having a blog?

    Why is all this copyright so hard to understand?