NBC objects to Romney using old footage- but should they?

Open source and widely distributed picture of Tom Brokaw requiring no royalties be paid.

NBC has objected to the use of their material in an ad put out by the Mitt Romney campaign. (Before Romney fans pull a Newt screaming "Liberal Elite Media!" please keep reading to get to the point.) Whether or not you believe news outlets are biased (Liberal Elite Media! Vast Left Wing Conspiracy!), this brings up an interesting point about media bias, balanced journalism, and when the media becomes the story and not just the reporter of the story.
NBC and Tom Brokaw have objected to the use of their material in an ad by the Romney campaign. While this may feel biased to some, the ad is worth considering-



Tom Brokaw is a long-time veteran of television reporting. Unarguably, one of the most revered in his field. About the ad he has said, “I am extremely uncomfortable with the extended use of my personal image in this political ad. I do not want my role as a journalist compromised for political gain by any campaign.”

The Romney ad uses an NBC News report from Jan. 21, 1997, the day Gingrich was reprimanded by Congress for using tax-exempt money for political purposes and giving the House Ethics Committee false information.  Gingrich is only shown in the background in a head shot, while Brokaw's image is used for 28 seconds of the 30 second spot.
As far as political ads go, this is one of the most fascinating ones from a message sender's point of view. It takes an historical event, and the actual news reporting of the time, clearly in context, to share the message. No one can argue that anything was taken out of context, edited, etc. It is effective because it is so simple and straight-forward. This sort of thing is rarely done effectively in commercials. But it works extremely well in this particular ad. The viewer has no reason to believe that anything in it is dishonest or manipulated (as compared to nearly all other campaign ads ever), and because of Brokaw's lengthy and notable career, he is considered very trustworthy.
But Brokaw doesn't like that his image is being used for political gain. And yes, it is being used for political gain- there is no tap-dancing around that. But is he right? Is it compromising his role as a journalist?


Tom Brokaw isn't being taken advantage of. The footage has not been obviously manipulated or edited. If we are to believe and accept that on January 21, 1997 Brokaw was a fair, unbiased, and honest journalist, then we are to believe that the events involving then Speaker Gingrich were reported accurately.
Sure there are many other ways the same story could have been portrayed. For starters, here's another ad paid for by the actual campaign (not a Super Pac) that uses actual footage, and several different media faces-


This ad is a full minute longer than the previous one above. And no one watching this one would mistakenly feel that Brokaw has sided with the Romney campaign. And because of the other recognizable journalists reporting the same story, it is even more believable.
It all begs the question again- is Brokaw right? If he was fair and unbiased in the original reporting, does he have any merits to stand on now saying that his work is being used for political gain?
Should a reporter or journalist be able to say they don't want their reporting being used like that? Where do you draw the line? Old footage from news sources is considered to be historical documentation, and regularly used in research. History books don't cover the 1980's yet. Anyone looking to research the 80's will turn to archived news media. News outlets are proud of that fact and regularly release old footage for that purpose to researchers. But again, where is the line between historical research, educational purposes, and use in a political ad. Anyone doing research is doing it for personal gain. Who gets to decide which entities get to gain from historical documentation and which do not? Or should media archives be declared commercial content and not historical references?
The answer from a purely legal point of view is very simple. NBC owns all of their content. It is not public domain. It is, for all intents and purposes, and legal definition, commercial content masquerading as factual evidence. NBC owns the content and anyone wishing to use it for anything other than educational or governmental purposes, must pay them for it.
NBC's legal department wrote to the Romney campaign, and asked for the removal of the footage. NBC also said that it had contacted other campaigns "that have inappropriately used 'Nightly News,' 'Meet the Press,' 'Today' and MSNBC material." CNN is  reporting the campaign did not ask it for permission to use the footage in the ad.
Romney campaign strategist Eric Fehrnstrom defended the use of the ad in a conversation with reporters on Saturday. "We just received the letter," he said, according to Reuters' Sam Youngman. "We are reviewing it. But we believe it falls under fair use."
This is a very interesting situation, and one that could eventually end up in courts and set precedent for news archives in the future. And this story itself has the potential to evolve into a news story of its own, separate from politics and the campaigns.
But from a purely personal and all-American point of view, can NBC say no to the Romney campaign, and then turn around and sell footage to another campaign? Laws require networks to give equal time and coverage to each candidate. So should networks also be required to give equal access to their past content no matter who is to gain from it? We allow anyone to walk into a store to buy what they want, in fact, we have laws protecting consumers granting them the right to go into a store. Should media content be any different?