On Monday, the campaign for Republican presidential candidate Mitt Romney posted an ad on YouTube that featured Barack Obama singing Al Green's "Let's Stay Together."
The clip, "Political Payoffs and Middle-Class Layoffs,” -- which uses around nine seconds of the song -- reportedly aims to show that Obama rewarded campaign donors while regular Americans struggled in the sputtering economy.
An Obama campaign spokesperson told the Washington Post that the ad was a "false line of attack." That might be, but most Web users don't have any way to judge the ad for themselves. That's because the clip was only available for a few hours before the music publisher BMG Rights Management sent a Digital Millennium Copyright Act takedown notice to YouTube.
The Romney campaign says it will file a DMCA counter-notice, in hopes of having the clip restored, according to the Post.
Some observers say that the Romney camp has a good shot at prevailing. "We wouldn't want politicians to be able to insulate themselves from criticism just because they deploy copyrighted bits of pop culture in their campaign appearances," writes Sherwin Siy, deputy legal director at the digital rights group Public Knowledge. "By singing 'Let's Stay Together,' Obama is deploying a particular work to indicate aspects of himself as a president and a candidate (as a relatable guy who likes sentimental Al Green tunes) -- aspects that the Romney campaign will disagree with and want to subvert and criticize (that Obama, far from being a regular guy, is in deep with big money donors and lobbyists)."
But even if the clip is protected by fair use principles, YouTube has no choice but to remove the ad pending its own investigation -- which could take up to two weeks. The Digital Millennium Copyright Act provides that video platforms like YouTube can be liable for infringement by users, unless infringing clips are removed in response to takedown requests.
Similar disputes came up during the last presidential campaign. At one point a representative of the McCain-Palin campaign sent a letter to Google criticizing the company for taking down YouTube clips too quickly in response to media and entertainment companies' complaints. The McCain-Palin camp proposed that YouTube staff personally review clips submitted by political parties before taking them down.
YouTube rejected that request. "While we agree with you that the U.S. presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important," a YouTube lawyer wrote to the campaign.