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(The Blaze/AP)Backlash to footage of a Cincinnati great-grandmother advocating for the repeal of Ohio's contested collective bargaining law being used in the TV ad of a rival group caused stations throughout the state to pull the spot, and experts disagree as to whether its use is legal.
Marlene Quinn's great-granddaughter was saved from a house fire in November, a story the 78-year-old Quinn shared in an ad from We Are Ohio, the union-backed coalition fighting to repeal the law. She tells viewers, "If not for the firefighters, we wouldn't have our Zoey today."
Building a Better Ohio, a group defending the law, recut the footage for its own commercial claiming the law will help, not hurt, firefighter staffing. This video shows the We Are Ohio, and Building a Better Ohio ads back-to-back:
The law signed in March bans public worker strikes and limits the collective bargaining rights of more than 350,000 teachers, firefighters, police officers and other public employees. Workers could negotiate on wages, but not on their pension or health care benefits.
Quinn told local TV stations on Friday that Building a Better Ohio was "stealing" her words and she demanded they take down the ad and apologize. So far, more than 30 stations have, said We Are Ohio spokeswoman Melissa Fazekas.
Building a Better Ohio spokesman Jason Mauk said the group is inflating their number by adding stations that were never asked to air the spot. Mauk declined to comment further, saying it was policy not to discuss ad strategy.
Fazekas said Quinn wasn't paid to appear in the spot, or in a new one released Friday, in which Quinn bashes Building a Better Ohio for using her image without permission:
Dale Bring, a lawyer for Building a Better Ohio, said the group had done nothing wrong.
When Quinn was put in the advertisement, she became a public figure, "much like Michael Jordan or the governor is a public figure," Bring said. That means her likeness can be used without her permission, so long as it relates to the union fight - much the same way opponents of Gov. John Kasich can use his image in campaign ads.
Law professors at the Ohio State University's Moritz College of law agreed with him.
"I think her having thrown herself into the debate ... there's a First Amendment right to use her in response," said Daniel Tojaki, professor at the Ohio State University's Moritz College of Law.
Tokaji's colleague, David A. Goldberger, agreed, saying as long as Building a Better Ohio used Quinn's image truthfully, the ad was fine.
"I don't think it's any different from her appearing in an interview and someone rerunning it on YouTube," Goldberger said.
However, in a letter to TV stations asking them to pull the ad, attorneys for We Are Ohio wrote that the way Quinn's image was used was "false and misleading." Goldberger said if a court or the Ohio Elections Commission decides that is true, Quinn could have grounds for a legal claim.
Brian Rothenberg, executive director of ProgressOhio, said it's not a question of whether she is a public figure but rather a question of copyright law. ProgressOhio has come out in support of We Are Ohio but isn't a member of the coalition.
Kathleen Hall Jamieson, director of the Annenberg Public Policy Center of the University of Pennsylvania, agreed with Rothenberg.
"The original image was posted on YouTube, so the question would be for the use of YouTube," she said. "I would assume that YouTube could go after them as well."
Google's terms of service state that content owners who upload videos to its YouTube website retain copyright over their posts. YouTube didn't immediately respond to requests for comment.
Fazekas said the video also violated sections of Ohio law that prohibit making statements under someone else's name without permission. We Are Ohio is still reviewing its options, she said.
Don McTigue, lawyer for We Are Ohio, declined to comment on the possible legal case, citing attorney-client privilege.
Political scientists say it's a fairly common tactic to use footage from an opponent's ad.
Bruce Newman, DePaul University professor of political science and a political marketing expert, said what makes this case different is that both campaigns used the exact same clip.
"It's a very clever strategy to rebuke and refute the point being made by taking a piece of it out and running it for the other side," he said.
Barry Burden, political science professor with the University of Wisconsin Advertising Project said it's typical to have two to three rounds of back-and-forth with this type of political fight. He said there's really no code of ethics governing groups doing political advertising.
"Fear of voter backlash usually keeps candidates above the board, but here, you have groups fighting about Issue 2 (the effort to repeal the law via ballot), and then they'll disappear or be renamed and support another cause," Burden said. "And that lets them go a bit further. So when you have groups fighting over an issue, it tends to be a bit nastier."
Both campaigns have used their dueling ads with Quinn to ask for donations.
Prompted by the controversy, a Democratic state Rep. Tracy Maxwell Heard said she intends to introduce Zoey's Protection Act to prevent "the misuse of campaign materials."
A call to a phone number for Quinn seeking further comment Friday got no answer.
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