Republicans embrace fair use (and Taylor Swift) to hit Obama

Many Republicans like to take a hard line against perceived pirates who use copyright without permission  – but what if those people included their own staff members? In the case of John Boehner, the Speaker of the House of Representatives, his staff appear to have helped themselves to Taylor Swift videos as part of a webpage mocking President Obama’s community college plans.

In case you missed it, “12 Taylor Swift GIF’s for you” is posted right on Speaker John Boehner’s official government website, and features classic Swift shots like this one from “Shake it off”:

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As the Verge noted, the Taylor-montage was created by two Communication Directors from Speaker Boehner’s office, and appears targeted at younger voters who are used to receiving information through meme-style messaging.

But that still leaves the question of what Swift thinks of the whole thing, and whether she is okay with the intellectual property implications — specifically, Speaker Boehner’s use of her copyrighted videos, and of the personality rights tied to her public image. Recall that Swift recently made a big stink about the alleged harm to artists when their work is made available for free.

Boehner’s office did not immediately reply to a request for comment about whether they obtained Swift’s permission, but I suspect the answer is “no,” and they just went and did it anyways like anybody else posting a funny GIF on the internet.

Fortunately for them, on the copyright question, the Speaker is almost certainly on safe ground thanks to the law of fair use. These rules permit people to use creative works without the copyright owner’s permission. The actual fair use test is more complicated than many people think but, for these purposes, the fact that clips are under 6 seconds with a transformative purpose means almost any judge would rule against Swift if she sued.

A harder question is whether Swift has a case the law of personality rights, which protects people (usually celebrities) from being placed in a false right or endorsing something without their permission.

I have no idea what Swift thinks of the President’s community college proposal, but it’s possible she could take exception to having her image used in Republican attack ads. If she does, the Speaker’s Office could likely rely on the First Amendment as a defense, though the state of the law right now means that wouldn’t be a sure thing.

In any case, the timing of the Speaker’s Swift meme is interesting since Congress, controlled by the Republican party, is currently undertaking a sweeping review of copyright law. While these reviews typically focus on piracy and enforcement, many people are calling on lawmakers this time to look at fair use issues, and how over-enforcement by big companies or trolls can limit free expression — like the clever GIF-messages created by Boehner’s team.

As Taylor suggests, there’s a lot to think about:

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