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Published: Thursday, 10/12/2006

Legal fight grows over taped sessions used in political ads

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - A potential legal battle is brewing over the use of Ohio General Assembly and state Supreme Court sessions in Internet political videos.

The debate pits political operatives against a nonprofit group funded by the state that provides unedited coverage of the legislature and high court to public television.

Twice this month, that nonprofit group, ideastream, has used a copyright argument to tell the Ohio Republican Party and a liberal advocacy group, ProgressOhio, to take down Internet spots because they did not get permission to use excerpts from a House of Representatives session and the swearing-in ceremony of Justice Judith Lanzinger.

Brian Rothenberg, executive director of ProgressOhio, responded by pulling a video from the new group's Web site that featured Tom Noe introducing several Republican officials, including Secretary of State Ken Blackwell, as Barbra Streisand sang "The Way We Were."

The Ohio Republican Party pulled its attack ad - which uses part of a speech by state Rep. Barbara Sykes, the Akron Democrat who is running for auditor - from YouTube.com but has kept the spot on the party's Web site.

The state GOP has not responded to an Oct. 2 cease-and-desist letter, said Daniel Shellenbarger, executive director of the Ohio Channel, which is weighing whether to file a lawsuit because, like ProgressOhio, the party retransmitted video footage without permission.

The GOP without permission could have linked to the Ohio Channel's archived coverage of Ms. Sykes' speech, but viewers would have seen all of her speech, not just the sound bite that Democrats said was taken out of context.

Mr. Rothenberg complained that Justice Lanzinger's swearing-in is not posted in the archive.

Chris Redfern, chairman of the Ohio Democratic Party, said if the GOP continues to use excerpts from legislative sessions, the Democrats "will have no other choice but to respond" by airing snippets of speeches in which Republicans have advocated higher taxes and fees.

In 2002, the state agency formed to videotape House and Senate sessions and other Statehouse activities was reorganized as a nonprofit group, in part to provide for better copyright protection so footage couldn't be used for political or commercial purposes, Mr. Shellenbarger said.

The broadcast product is called the Ohio Channel, but employees are managed by ideastream, a Public Broadcasting Service station in Cleveland, and receive paychecks from ideastream.

The state budget provides about $1.2 million per year to ideastream.

Mr. Shellenbarger said idea-stream holds the copyright to the House and Senate sessions and Supreme Court oral arguments because it produces what is aired on public television stations around the state.

"We do receive funds, but we're not a state agency. We are a private, not-for-profit,'' said Mr. Shellenbarger.

He said the state contracts with ideastream to videotape the legislative and Supreme Court sessions. "We are not the official record. The official record is kept within the [state] organizations."

But David Marburger, counsel to the Ohio Coalition for Open Government, said he believes excerpts can be used by political groups under the legal concept of "fair use."

"Where you get into trouble is using those excerpts for commercial purposes," he said.

Raymond Ku, a law professor at Case Western Reserve University who is a copyright expert, said a copyright can be claimed "once you create a form of expression."

Governments generally can own copyrights but are not allowed to assert them, Mr. Ku said. If ideastream wants to sue, it must file its copyright with the federal government, he added.

"We've really seen an expansion of copyright claims in the last decade or so, and it will be interesting how this plays out. With the Internet, you can save these clips and manipulate and distribute them in ways we couldn't do easily before," said Mr. Ku, who is a Democratic candidate for state representative.

Contact James Drew at:

jdrew@theblade.com

or 614-221-0496.



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