Prop. 8 campaign uses Chron content to scare voters

Since SF Weekly went to press before election results came in, we don't know if Californians voted yes or no on Proposition 8, the constitutional amendment banning gay marriage. Still, we can comfortably assert that in postmortems of the election, the marriage of first-grade teacher Erin Carder to her lesbian partner, Kerri McCoy, at City Hall on Oct. 10 will figure prominently. Attended by a class of first-graders and officiated by Mayor Gavin Newsom, the ceremony was rapidly immortalized as fodder for Prop. 8 supporters, who in the days before the election warned in ever-starker terms of schoolchildren being indoctrinated into the dark arts of same-sex marriage.

No one came off looking too good in this episode, including the professional news organization that did the looking — the San Francisco Chronicle, which captured the event on videotape and posted the footage on its Web site. In the days since Carder's wedding, the Chron had asked Yes on 8 to stop using the video footage in commercials and on its Web site, to little effect. "We have sent them letters," deputy managing editor Steve Proctor told SF Weekly. "We've said we treasure our objectivity, and we'd like for our work not to be used in a political way." Those entreaties were ignored. The problem, Proctor said, was that, according to the newspaper's lawyers, the footage in question fell under the "fair use" doctrine, which allows for the reproduction of material without regard for copyright laws. "It's distasteful to us. We don't like our work to be used that way. But the law is the law," Proctor said.

Jennifer Press, whose 6-year-old daughter was prominently featured in the much-replayed wedding tape — wearing, it might be added, the bored and less-than-indoctrinated expression of young children at weddings since time immemorial — did not accept that explanation. After writing a letter to the Chronicle on Oct. 27 asking that they take action to keep the footage out of the hands of anti-gay-marriage advocates, Press received a letter from publisher Frank Vega and editor Ward Bushee explaining that while they "sympathized" with her concerns, the law was not on their side. Press wasn't happy.

"My beef is the fact that they didn't try," she said. "They were responsible for the images and they let them get abused ... I would have liked the Chronicle to do something loud and public. What they did was not enough."

Oh yeah, and about that law: Jim Wheaton, an Oakland-based lawyer with the First Amendment Project who teaches journalism law at UC Berkeley and Stanford, said the matter was not quite as cut-and-dried as the Chronicle's lawyers made it out to be. The copyright claim would have had strong grounds, Wheaton said, given Yes on 8's wholesale reproduction of the paper's images. But while the Chronicle might ultimately have prevailed in court, litigation could have cost tens of thousands of dollars and would almost certainly have been resolved long after the election. "Leave aside the strength of their claim, which I would evaluate as pretty strong," Wheaton said. "The cost and expense and distraction of going into court to do something about it would prevent them from doing it, as a business decision."

In other words: Business as usual at the Chron.

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