With Inauguration Day just around the corner, it seems like a good time to reflect on the recent election campaign--not to rehash the old red state-blue state thing, but to analyze the ads we saw from a legal perspective. Did any of them violate copyright protections enjoyed by third-party creators?
Don't laugh--the controversy has arisen, including last summer when the McCain campaign incurred the wrath of '70s rock group Heart, whose song "Barracuda" blared over the speakers at vice presidential candidate Sarah Palin's rallies. The McCain campaign and the Republican Party also angered several other well-known bands and songwriters, including The Foo Fighters, John Mellencamp, and Jackson Browne, by using various copyrighted works of theirs along the campaign trail. Mr. Browne did not take the use of his song "Running on Empty" lying down. He filed a suit for copyright infringement that is still pending (Browne v. McCain, No. 08-05334 (C.D. Cal., filed August 14, 2008)).
These disputes are not new. In 1984 Bruce Springsteen complained when Ronald Reagan used his song "Born in the USA" during Reagan's run for reelection. In many cases, an artist's protest puts an end to the problem. In the Reagan-Springsteen episode, the campaign quickly (and quietly) stopped using the song when it realized the true message of the lyrics.
The unauthorized use of songs is only one aspect of a larger problem. Piracy of all types of intellectual property is serious business. Protectable creative material utilized for political purposes can include writings, songs, photographs, film clips, fictional characters, images, logos, and much more. And the legal questions reach beyond copyright to the core values of the First Amendment.
Can a clip of Governor Schwarzenegger taken from a popular movie be used in television ads against him? Can newspaper articles be quoted in political ads, either to support or attack a candidate? Can an Internet posting be used in a brochure? These questions arise every day in the era of multimedia political campaigns. Campaigns need to know whether using creative material in support of their candidate violates other parties' intellectual property rights, especially those protected by the federal Copyright Act (17 U.S.C. §§ 101-1132).
Under the Copyright Act, the owner of a copyright is given exclusive rights to reproduce, distribute, and display that work, and to authorize others to do so (17 U.S.C. § 106). These include the exclusive right to prepare works derived from the copyrighted work, known as derivative works. Therefore, unless a political campaign owns the copyright or has the copyright owner's permission, that campaign cannot use someone else's copyrighted work in its ads without violating the Copyright Act. It does not matter whether the copyright is registered with the U.S. Copyright Office (17 U.S.C. § 408). Copyright protection exists from the moment of creation of a work. And even if the work has not been registered, it is still entitled to copyright protection, although no infringement claim can be filed prior to registration of a work (17 U.S.C. § 411(a); see also Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir. 1994)).
The First Amendment
Because political advertising appears to represent the ultimate exercise of constitutionally protected free speech, campaigns may be tempted to believe that it is beyond the reach of intellectual property law. After all, it is well settled that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." (Eu v. San Francisco County Democratic Council Comm., 489 U.S. 214, 223 (1989), quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).) Political speech has been declared "at the core of the First Amendment" (Boos v. Barry, 485 U.S. 312, 318 (1988)), which has also been deemed to reflect a "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open" (New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
The copyright clause actually predates the First Amendment, as it was part of the original Constitution, while the First Amendment was added through the Bill of Rights. Accordingly, the framers could not have intended that the First Amendment completely abrogate copyright law, nor should any present-day politico be so deceived.
Tension Between Rights
There is an inherent tension between copyright law, which can restrict speech, and the First Amendment, which exists to protect speech. The relationship between the two has been explored by numerous courts over the years, and most have concluded that the First Amendment does not provide a complete defense to a copyright-infringement claim.
In Harper & Row Publishers Inc. v. Nation Enterprises (471 U.S. 539 (1985)), the Supreme Court specifically rejected the assertion that the First Amendment provides a complete defense to a claim of copyright infringement. In Harper & Row, the Nation magazine had obtained without authorization excerpts from President Ford's soon-to-be released memoirs and proceeded to publish an article containing some of the excerpts. When Harper & Row, which owned the rights to Ford's memoirs, sued for copyright infringement, the Nation argued that its actions were protected by the First Amendment because Ford was a national political figure and his memoirs were of substantial public interest. The Supreme Court rejected the Nation's First Amendment defense, finding that even if an author is a political figure and the author's expressions are extremely newsworthy, the author still enjoys the protections of copyright law.
In fact, the Court noted that "the Framers intended copyright itself to be the engine of free expression" by guaranteeing rights of authors to protect their artistic works from infringement by others (Harper & Row, 471 U.S. at 558).
As with any copyright-infringement claim, the allegedly infringing political campaign may raise the "fair use" defense--the most prevalent defense used in copyright claims. To determine whether the use of infringing material is a "fair use," courts apply a four-factor test. The four factors, which are codified in the Copyright Act, are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for and value of the copyrighted work (see 17 U.S.C. § 107). A First Amendment defense to an alleged infringement is predicated on the fair use doctrine and presented to the court through application of these four factors.
This is precisely the analysis the Ninth Circuit utilizes when it considers the application of the First Amendment to copyright-infringement claims. The Ninth Circuit has assiduously avoided the "briar patch" of engaging in a per se First Amendment analysis in copyright-infringement actions by finding that "First Amendment concerns in copyright cases are subsumed within the fair use inquiry" (Elvis Presley Enterprises. Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003), cert. denied, 542 U.S. 921 (2004)).
Specifically, the first factor focuses on "the purpose and character of the use." If the purpose and character of the use is for political advertising, then the First Amendment implications will weigh heavily in favor of a finding of fair use, because the use is for a purpose that lies at the very core of protected speech. "Although the First Amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use." (Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526, 1536 (C.D. Cal. 1985).)
Fair Use Limitations
In light of the Hustler Magazine decision, a political campaign may be able to use portions of filmed interviews, clips from movies, or quotes from published newspaper reports without being liable for copyright infringement. That's because the materials are used not for commercial purposes but for political purposes protected by the fair use defense. (See, e.g., Keep Thompson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978) (use of portion of copyrighted song in political ad not likely to constitute infringement).)
But be careful. The use of copyrighted materials in campaign ads is not without limitation. The fair use test contains four factors, and the "public purpose" of the use is only one of them. Even though the use may not be for commercial purposes, a campaign can still be held liable for copyright infringement if it violates the remaining three fair use factors. Critical to the fair use analysis is consideration of the amount of material used in relation to the copyrighted work as a whole, and the economic impact of the use on the copyright holder. Campaigns should refrain from using full and complete copies of interviews or photographs, because such wholesale copying could deny economic benefit to the copyright holders who are entitled to exploit their copyrighted works for profit.
Wholesale misappropriation of a copyrighted work, even for political purposes, can cause significant liability to political campaigns. In one case, a candidate used a photograph of his opponent, taken from his opponent's ad, in his own campaign ad. The freelance photographer who owned the copyright to the photograph brought a copyright-infringement action because the candidate had used the photograph without the plaintiff's permission. The court found that although the photograph had undeniably been used in a political ad, this was not a fair use because the copyright owner was entitled to compensation for use of the photo. Thus, the court affirmed a judgment against the defendant for $500, the amount the jury found that the plaintiff should have been paid for use of the photograph; in addition, the court awarded the plaintiff more than $70,000 for attorneys fees and costs (Long v. Ballantine, 1998 U.S. Dist. LEXIS 7813 (E.D. N.C. 1998)). The fact that a speech or other work was created for political purposes does not in itself mean that another party can use it for any purpose, especially if the misappropriation is wholesale (Jackson v. MPI Home Video, 694 F. Supp. 483 (N.D. Ill. 1988) (unauthorized sale of videotape of 1988 convention speech given by Rev. Jesse L. Jackson not protected by fair use)).
Is It a Parody?
In addition to the fair use defense, campaigns also frequently assert that they are protected from a copyright-infringement claim because their ads are "parodies" of the copyrighted work. As the Ninth Circuit has held, "parody is regarded as a form of social and literary criticism, having a socially significant value as free speech under the First Amendment." (Dr. Suess Enterprises L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997).) Parody is a subset of the fair use doctrine. If an ad is determined to be a parody, "the second, third, and fourth [fair use] factors are unlikely to militate against a finding of fair use." (Abilene Music Inc. v. Sony Music Entertainment, Inc., 320 F. Supp. 2d 84, 89 (S.D.N.Y. 2003).)
Although a parody finding can provide a defense against a copyright-infringement claim, the difficulty of the parody defense is that it is not always clear what constitutes parody. As established by the U.S. Supreme Court, the "threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived." (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994).) In lay terms, if the court gets the parody, then the use will not be determined an infringement. If the court does not, then the defense will likely fail.
In his 2000 run for president, Ralph Nader's campaign ran an ad that mimicked MasterCard's well-known "Priceless" advertisements. Like the MasterCard ads, Nader's showed several different items and the price of each ("Grilled tenderloin for fund-raiser, $1,000 a plate"; "Campaign ads filled with half-truths, $10 million"; "Promises to special interest groups, over $100 billion"). Nader's ad ended with the tagline: "Finding out the truth, priceless." (See MasterCard Int'l Inc. v. Nader 2000 Primary Comm., Inc., 2004 U.S. Dist. Lexis 3644 (S.D.N.Y. 2004).) Although Nader's ad borrowed both the look and feel of the MasterCard ad and its famous tagline, the court granted summary judgment to Nader, finding that the parody was protected because the parodic character of the ad could reasonably be perceived (see also American Family Life Ins. Co. v. Hagan, 266 F. Supp. 2d 682 (N.D. Ohio 2002) (unauthorized use of animated "Taft Quack" duck may constitute protected parody of well-known AFLAC duck)). But remember, the parody defense works only if the court gets the joke.
Faced with the question of whether they can use someone else's copyrighted materials in their own ads, campaigns-- like all other good citizens--should seek permission to use the copyrighted work first, before the ad is released. For example, when Heart demanded that the McCain campaign cease and desist from using "Barracuda," the campaign declined to do so because it had purchased a license from the American Society of Composers, Authors and Publishers (ASCAP) to use the song at public events. A caveat: There are different kinds of licenses, and you must be sure you've purchased the right one for the use you anticipate. A license to use lyrics does not entitle you to use an artists' rendition of a given song. And a license to use an artist's version may not entitle you to cover the tune with your own band. An all-encompassing license may be safest.
The aftermath of the "Barracuda" flap was interesting. Although Heart (in the person of lead performers Ann and Nancy Wilson) protested, the song's cowriter, Roger Fisher (the band's former guitarist and Nancy's ex), had a different take. By one report, he was happy to receive the publicity and had pledged to give part of the royalties from the song's use to the campaign of thenpresidential candidate Barack Obama. Even in the realm of a copyright dispute, turnabout is fair play.
Campaigns are long and winding roads. Although political advertising lies at the core of free speech, political ads are not free from the restrictions of the Copyright Act. Before using copyrighted material, campaigns should secure proper permission to do so--otherwise, the voters may not be the only ones to issue a final judgment.
Andrew Stroud is a partner at the law firm of Mennemeier, Glassman & Stroud in Sacramento, where he practices intellectual property law and advises political campaigns on IP issues.