A Senate candidate in Arizona copied an old Mitt Romney ad to attack John McCain. It did not go well.
The ad was taken down after Romney's lawyers sent a cease and desist letter.
Mitt Romney is sitting out the 2016 election cycle, but that doesn’t necessarily mean his campaign isn’t running ads. Or, more accurately, that his campaign ads aren’t being run.
Kelli Ward, a former Arizona state senator challenging Sen. John McCain, apparently ripped a 2008 Romney campaign ad to use in her Republican primary campaign this year.
As first reported Tuesday night by The Arizona Republic, Ward ran a campaign ad identical to an ad Romney ran against McCain during the 2008 GOP primary, looking to paint the Arizona senator as a moderate.
Romney campaign’s web ad from eight years ago, titled “Very Close,” looked to draw ties between McCain and Hillary Clinton.
Ward’s ad, which was posted Monday and then deleted Wednesday from her Facebook page, was identical to Romney’s, with the exception that she replaced the former Massachusetts governor’s sign-off—”I’m Mitt Romney and I approve this message”—with her own.
Charles Spies, the chief financial officer and counsel of Romney’s 2008 presidential campaign, told Boston.com Wednesday that a cease and desist letter had been sent to the Ward campaign, demanding that they stop using the footage.
A Romney aide confirmed Wednesday evening that the former governor’s presidential campaign had sent the cease and desist letter to Ward’s campaign.
The Republic’s Dan Nowicki tweeted a partial photo of the strongly worded letter Wednesday evening from Romney’s lawyers ordering Ward to take down the ad.
NEW: @MittRomney‘s lawyers send @kelliwardaz cease-and-desist letter over poached ad. #AZSEN https://t.co/LycP9rhNFl pic.twitter.com/bZSlZnmeyO
— Dan Nowicki (@dannowicki) July 13, 2016
“Romney for President has not authorized your campaign’s use of its protected material and your campaign cannot rely on a ‘fair use’ exception to the copyright laws to justify this misappropriation of RFP’s protected work,” the letter said.
Generally, fair use copyright exemptions only protect the reproduction of material for the purposes of commentary on or parody of the original work. Without explicit permission, Ward’s campaign runs the risk of violating copyright law and possibly being sued by the ad’s creators.
Harvard Law School professor and copyright law expert Larry Lessig told Boston.com that many campaigns make video footage freely available online as a work around to allow super PACs, which are prohibited from coordinating with campaigns, to legally use the material.
However, he said that did not appear to be the case here, in which the Ward campaign used nearly an exact duplicate of an ad the Romney campaign pushed online itself in 2008.
“I don’t think it’s fair use,” Lessig said, reiterating the view of the Romney camp.
Earlier in the week, Ward’s campaign had stood by their use of the ad.
“Mitt Romney got it right,” Stephen Sebastian, a campaign spokesman, told The Republic. “If the shoe fits, wear it. The substance is still the same. Some things never change.”
The campaign even tweeted a link to the The Republic story Wednesday, with the comment, “If the shoe fits, wear it.”
Despite their differences during the 2008 primary, Romney and McCain have since stood as allies. Romney endorsed McCain’s re-election bid this year and appeared with the Arizona senator on the campaign trail last December. The two former GOP presidential nominees also teamed up to rebuke Donald Trump, the presumptive 2016 Republican nominee, back in March.
This isn’t the first time the reuse of a 2008 Romney campaign ad resulted in tumult. In 2015, Romney’s former main super PAC paid a $50,000 fine after the independent group recycled a 2008 Romney campaign ad as their own during the 2012 election.
That penalty, however, was for violating campaign finance laws—rather than copyright laws—which state that super PACs are prohibited from coordinating with candidates’ campaigns.
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