A Berkeley-based non-profit is demanding that footage from a documentary they produced be removed from a controversial TV advertisement attacking Democratic presidential nominee Barack Obama.
The Free History Project produced "The Weather Underground," an Academy Award-nominated documentary about a radical group that bombed the U.S. Capitol and other sites in the late 1960s and early 1970s.
Footage from the film is being used in an ad created by the American Issues Project. The ad is being shown in Michigan and Ohio.
The ad claims Obama has a close relationship with William Ayers, a former member of The Weather Underground who is now a professor at the University of Illinois at Chicago.
The commercial asks, "Why would Barack Obama be friends with someone who bombed the Capitol and is proud of it?"
Obama has said that Ayers is no more than an acquaintance and that he was eight years old when the Capitol was bombed.
A lawyer for the Free History Project sent a cease-and-desist letter to the American Issues Project demanding that they pull the documentary footage from the ads and return all materials to its owners.
The American Issues Project replied that it has done nothing wrong and that the use of the footage is allowed under fair-use guidelines.
"Our position is that the core of what counts as fair-use is when you comment on copyrighted material or transform it for some other purpose," said Brook Dooley, an associate at Keker & Van Nest who is working with the Free History Project. "We don't think either of those things has happened here, they're just taking it and using it."
But Cleta Mitchell, the lawyer representing the American Issues Project, said the ad transforms the documentary footage and is within the guidelines.
"It's a transformational use, it's not identical to the very brief snippet that was used from the documentary," he said. "We concluded that this falls well within the provisions of the federal law governing fair use of published work."
Sam Green, the documentary film's co-director and a member of the Free History Project's board of directors, said that the Free History Project has been in contact with the Obama campaign about the ad, but that its attempts to stop the ad are not partisan.
"This is not about partisanship for me it's just about taking somebody's work and twisting it," he said. "It's pretty slimy in my book and I'm upset because it seems like it could be effective too."
Green said he believes the ad is misleading because it exaggerates the relationship between Ayers and Obama.
"If you're a politician in Chicago, you probably have a relationship with almost everyone who's a mover and a shaker," he said. "The fact that they have some relationship doesn't mean anything. They're taking two unrelated things and mushing them together and hoping some of the shit fits."
However, Mitchell said there is extensive documentation of all the statements made in the ad.
"We have a 160-page research document that documents every assertion and every statement in the ad and it's posted on American Issues Project Web site for anyone who wants to go and look at all the research that substantiates every single statement in the ad," she said. "Every word in the ad is documented from more than one source."
Mitchell said the $2.8 million to pay for the ad's airtime was funded by Texas billionaire Harold Simmons, who also helped fund the "Swift Boat Veterans For Truth" ad campaign that attacked Democratic Presidential Nominee John Kerry in 2004.