Intellectual Property

Copyright And Campaigns

Copyright issues in political campaigns arise frequently. Here are five examples from recent years.

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With two nights of the most recent Democratic debates this week, elections and campaigns are definitely the topic on everyone’s mind (or maybe that’s just my D.C., inside the beltway bubble). All of the recent attention to elections reminded me that copyright issues in political campaigns frequently arise. For example, a candidate might want to use a clip of an opponent in a campaign ad to criticize his or her opponent. Campaign rallies, as well as TV and radio ads, frequently use copyrighted music. Print ads might use copyrighted logos or images.

Here are five examples of copyright and campaign stories from recent years.

Mitt Romney Ad Pulled from YouTube – During the 2012 elections, Mitt Romney’s campaign was unhappy with President Barack Obama’s campaign ad that used Romney’s singing of “America the Beautiful.” Romney, unfortunately, appears to be a bit tone deaf and the political attack ad exploits his lack of singing talents. In retaliation, Romney’s campaign created its own attack ad of President Obama singing “Let’s Stay Together” by Al Green. BMG Rights Management, which owns the rights to “Let’s Stay Together,” had Romney’s ad pulled from YouTube due to copyright infringement. The video was restored on the YouTube platform several days later, perhaps because of the outcry that Romney’s use was fair use.

Copyright Litigation Over “Hope” Poster of Obama – The iconic poster of Obama in the 2008 election, tinted with red and blue, with the word “HOPE” emblazoned on the bottom was the subject of copyright litigation between Shepard Fairey and the Associated Press. Fairey based his graphic poster on a photo that had been taking by the Associated Press at a 2006 event and argued that his use was a transformative fair use. The Associated Press disagreed, claiming that Fairey infringed copyright. Ultimately, the case settled in 2011. Of course, in true transformative fashion, that “Hope” poster has been replicated, transformed, and changed dozens of times. Just do a Google image search for “Obama hope poster” and see all the variations — with and without Obama — that have been created.

Obama’s “Bad News” Ad Taken Down – In 2008, the Obama campaign created a video that used archival footage of Tom Brokaw and Keith Olbermann to create a fake newscast and deliver the “bad news” that his opponent, Senator John McCain, had been elected president. NBC, displeased with the ad, asserted copyright infringement and issued a takedown notice. YouTube removed the video, which the Obama campaign had hoped would help “get out the vote.” Indeed, the Digital Millennium Copyright Act (DMCA) takedown process has been frequently criticized because of the tendency to take material down immediately, which can have serious consequences for elections.

Fox News Sends Cease-and-Desist to McCain Campaign for Use of 19-Second Debate Clip – In the run up to the 2008 presidential election, Senator McCain used 19 seconds of a 90-minute debate sponsored by Fox News in a campaign ad. While the McCain campaign asserted that the use was a fair use, Fox argued that the commercial nature precluded fair use. The video ended up going viral online, though its initial intended use was for television spots. Subsequently, Fox News sent cease-and-desist letters to all candidates using footage from the network.

R.E.M. Objects to Use of Music in Trump Campaign – Musical artists objecting to the use of their songs in campaign rallies and ads is nothing new and any number of examples could have occupied this spot. Aerosmith and Neil Young both objected to use by the Trump campaign in 2016, issuing cease-and-desist letters. Tom Petty, Survivor, Twisted Sister, Silversun Pickups, and Dropkick Murphys are just a few examples of artists who objected to 2012 campaigns using their music. R.E.M.’s Michael Stipe’s statement is the one that stands out for me, however, due to the colorful and pointed language: “Go fuck yourselves, the lot of you — you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign.” Typically, the artists are not objecting to the use of their music generally, but object to being associated with a particular candidate or campaign — at times they turn to copyright to try and prevent the use of their songs. Of course, in many cases, their cease-and-desist letters simply raise publicity and let the general public know that the particular band or artist does not want to be associated with the candidate. Typically, campaigns using various venues for their rallies and events, such as arenas or convention centers, pick songs that are licensed by the venue covering various rights organizations like ASCAP, BMI, and SESAC. However, in some cases, the campaigns have to secure the licenses themselves because the licensing agreements with the venues may exclude use for campaign events.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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