They Call Me PROPOSITION 4!

With $5 million in repairs and improvements promised within for Austin Studios, Prop. 4 would be a shot in the arm to Austin's film scene. Understandably, the local film community is psyched about the proposition, and is pulling out the stops in promoting the prop. The talented crew at 05min Productions recently created an eye-popping, retro-chic commercial endorsing Prop. 4 on behalf of I'm for 4 PAC. And unlike those infamous “Vote for 4” fortune cookies reported earlier here, it has a campaign finance disclaimer prominently attached at the end.

But a completely different problem is – the clip appears to be a copyright infringement on the film it samples. The commercial is composed of clips from the 1970 Sidney Portier film They Call Me Mister Tibbs, sequel to the Academy Award winning In the Heat of the Night. Ingeniously, 05min Productions edited scenes from the film where its characters discuss the fate of their own Prop. 4. It's an ingenious repurposing of the original film, seamlessly pulled off.

But is it legally allowable? A copyright expert at the UT School of Law, Professor Oren Bracha, said the answer was unclear, but he could draw some broad delineations from the ad. "In legal talk," Bracha said, "it's presumptuous infringement", meaning there's no question as to whether the clip infringes on the original copyright. That said, it might still fall under the “fair use” doctrine, whereby small amounts of copyrighted material can be used in scholarly or journalistic commentary – but that exception normally does not apply to political campaigns, if copyrighted material has been used without permission.

While very much a legal gray-area, especially under the avalanche of Internet copyright conundrums, Bracha pointed to some "very broad, open ended guidelines" defining fair usage. "You have to ask how much of the original work is used here. In this case, not much," he said, under a minute of a feature-length film. Another important distinction is between appropriating creative works versus factual ones; with Mister Tibbs a fictional, creative work, there's no factual imperative on the ad's creators to use it, Bracha said, which lessens the case for fair use. "The fact that it's part of a political campaign doesn't exempt it from copyright liability," he continued, nor does the fact that it only enjoyed limited play in the Alamo Drafthouse or at Prop. 4 rallies. According to Bracha, "the bottom line is, it's not a clear cut decision." There's little question the clip is an infringement, but, "is it fair use? Probably, but if I was (05min Productions') attorney, I wouldn't advise my client they were 100 percent safe."