In this modern era, political candidates often rely on pop culture and social media to convey their platforms to voters and even criticize their opponents through advertisements and print materials. However, unauthorized use of photos, videos, and even music in political advertisements can result in significant liability that can upend one’s political aspirations.
U.S. copyright law protects original works of authorship, such as photographs, video footage, and music, from being used without permission from the copyright owner. Copyright infringement can result in significant liability, including monetary damages and up to $150,000 in statutory damages (with no proof of actual damages required). This can result in harm to a campaign’s finances, efficiency, and reputation.
Although there are some exceptions and defenses to copyright infringement, they are often narrow and specific. One defense is the fair use doctrine, which allows the use of protected works without the author’s permission. However, fair use is not a get-out-jail-free card that can be applied to every use in politics. Further, there is no bright line rule regarding what constitutes fair use versus infringement. On the contrary, fair use is a mixed question of law and fact that requires careful analysis. U.S. courts consider the following four factors when evaluating if the fair use doctrine applies or not:
- The purpose and character of the use;
- The nature of the copyright-protected work;
- The amount and substantiality of the use; and
- The effect on the market of the copyright-protected work.
Copyright infringement in political campaigns
A copyright infringement lawsuit is the last thing anyone wants, especially when you’re a busy politician seeking a contested elected position. Unfortunately, the use of unauthorized content is so widespread during election season that it is not uncommon for a candidate to face multiple copyright claims throughout their campaign. Consequently, these claims can divert valuable campaign funds and efforts away from acquiring more votes to defending against a civil copyright dispute.
For example, during her 2010 midterm election bid for U.S. Senate against Harry Reid, Tea Party candidate Sharron Angle found herself on both sides of the copyright battle. Angle accused the Reid campaign of using unauthorized copies of her old campaign webpages in attack advertisements and threatened to file a copyright claim against Reid. However, ironically, Angle found herself defending a copyright claim against serial copyright litigant Righthaven for her unauthorized use of two news articles to attack Harry Reid. Faced with the decision to either fight a lengthy civil court battle or resolve the dispute, the Angle campaign settled the matter.
In addition, even using popular memes can expose you to copyright liability. In a more recent account, Iowa Representative Steve King modified the viral meme “Success Kid” in a campaign fundraising advertisement. The “Success Kid” photo features a toddler named Sam raising his fist to the camera with an intense look on his face. King’s campaign modified the image and included a link to King’s fundraising website. On December 30, 2022, Sam’s mother, who was the photographer and copyright owner of the “Success Kid” meme, filed a copyright lawsuit against King and his campaign for using the image.
Additionally, several candidates, including John McCain and, more recently, Donald Trump, have also faced copyright claims for using popular songs at campaign rallies and in political advertisements without proper licenses.
Nobody wants the headache of defending a litigious copyright claim, especially not a busy politician or political action committee (“PAC”). The examples above represent just a few instances where political campaigns underestimate the importance of understanding the scope of copyright protection of existing works and content. Given the complexities of the fair use doctrine, it is not enough to rely on it to bail you out of unauthorized use of a work in a political advertisement. Without proper guidance, candidates and PACs may engage in avoidable copyright infringement. Therefore, it is imperative that politicians and their campaign team consult with an intellectual property attorney, conduct clearance searches, and acquire the proper licenses before using content and musical works owned by someone else.
About this article: This article was originally published in the “Election” issue of Communiqué, the official publication of the Clark County Bar Association, (September 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-september-2022/.
About the author
Caleb L. Green, Esq. is an intellectual property and government affairs attorney at Dickinson Wright, as well as the Treasurer of the Las Vegas Chapter of the National Bar Association.
© 2022 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.