What do the campaigns of Sarah Palin, John McCain, Ted Cruz, Donald Trump, Newt Gingrich, Rand Paul, Ralph Nader, Ronald Reagan, Mike Huckabee, Barack Obama, and Mitt Romney all have in common? They have all faced claims of copyright infringement for their use of music or other works of art.
Candidates—and outside groups supporting or opposing them—often do not pay much attention to the copyright laws that apply to their activities, and sometimes use other people’s copyrighted works without obtaining the necessary licenses. For example, candidates use popular songs at rallies and campaign events and in YouTube videos and other online advertisements, without getting the required consent or license from the musician, songwriter, or performing rights societies. And sometimes they will use photographs or artwork and incorporate them into TV ads, digital ads, mailers, and emails, without obtaining, or making sure their contractors have obtained, the necessary permissions, consents, or licenses from the artists whose work they are using.
Is It Fair Use?
Many candidates and political groups rely on the legal concept of “Fair Use” when questions arise about how campaign materials incorporate works created by third parties. But there are widespread misconceptions in the political arena about just what Fair Use entails. Certainly, it does not create carte blanche entitlement to use copyrighted works in a political context.
Fair Use is not a broad defense; there are specific, sometimes subtle tests to determine whether something qualifies as a Fair Use. In general, this is a fairly limited area where copyrighted works may be used without a license.
It is essential that candidates and advocacy groups consult with a copyright law expert before using protected work for political purposes. All in all, it is usually far safer for a campaign to get permission from the underlying musical or visual artists before incorporating copyrighted materials into campaign materials, just as in any other commercial use of copyrighted material.
Music: Remember, There Are Different Kinds of Licenses for Different Uses
- Public performance license. When a campaign wants to have an event with a musical performance component—such as using an existing sound recording or having a band play its own version at an event—either the venue or the sponsor of the event must have a public performance license from the songwriter. Most venues, such as hotels, arenas, stadiums, theaters, and sports arenas, get blanket licenses from one of the performing rights organizations (PROs). There are three PROs in the United States. Each of these represents a large body of different songwriters and lyricists. Venues find it easier to get a blanket license that covers the PRO’s entire catalog, which may be performed in the venue, so in that way one license will cover them for hundreds of thousands or millions of songs.
Licenses are often based on whether tickets are being sold or offered free of charge, how often music is being performed, the number of seats in the venue, etc. Event sponsors can simply go online, fill in a form, and quickly obtain a license. If a campaign is merely playing a song in a venue that has a blanket license from one of the three PROs mentioned above, it is probably going to be in compliance with the copyright law. However, sometimes rallies happen in nontraditional event spaces, where these blanket licenses may not apply. In those situations, the campaign or group sponsoring the event must take extra care to acquire necessary licenses from the artist whose work is going to be performed, or their publisher or the PRO.
- Sound recording license. A PRO’s licenses do not cover music when it is part of any type of video or motion picture or other advertisement. So when a campaign posts any footage to YouTube, or online, or in a TV ad or otherwise, it needs to negotiate a license from the individual copyright owners of the song, as well as for the sound recording if it is using the original band’s version. The sound recording copyright is usually retained by the record company. There are no fixed fees for these types of licenses, and thus they need to be negotiated separately.
For the visual arts, there are no corresponding performing arts societies or central places where campaigns can go to license large bodies of artwork or photographs. There are websites such as Getty Images and Corbis, where millions of images are available to individually license, but fees need to be paid and restrictions often apply that prohibit or limit political use. The specific license agreement should be read carefully to determine the extent of the license and its limitations. Again, there is no obligation on the part of the copyright holder, that is, the photographer or artist, to grant a candidate or advocacy group the right to use their work. Using work without permission creates the potential for litigation as well as negative publicity.
It is important to keep in mind that in circumstances not covered by PRO licenses, artists and recording companies are never required to grant permission. Thus, artists frequently demand that candidates with whom they disagree stop using their music or artwork. Moving forward with the use without permission is copyright infringement. Statutory damages can easily reach the hundreds of thousands of dollars and include attorney’s fees. Such disputes can also lead to damaging publicity, particularly when the dispute is with a popular songwriter or band. For example, Mike Huckabee’s campaign recently agreed to pay the band Survivor $25,000 to settle their suit for a one-time use of their song “Eye of the Tiger,” and a claim for millions against the Ted Cruz campaign and its advertising firm for unauthorized use of two songs survived preliminary motions to dismiss and is proceeding.
Working with Vendors: Contracts are essential for your protection
Many campaigns and advocacy groups use contractors to create their ads, websites, social media, and other content. These contractors range from major advertising firms to freelance graphic designers. When relying on a contractor to create the work, the campaign or group needs written representations in place from that contractor that the work is original or that the appropriate licenses have been obtained. The contractor should indemnify the campaign for third-party infringement claims about the material the contractor created. Many campaigns and other organizations that use political advertising have media insurance policies to help protect against such claims. These insurance companies often require the campaign to represent that it will have all vendors sign written contracts containing specific representations and warranties about copyright infringement.
Online Content: The Mere Fact That It Is There Doesn’t Mean You Can Use It
In today’s digital world, it is easy to find high-quality artwork that is perfectly suited to convey a campaign message. Digital music abounds. But that does not mean campaigns can use it free of charge. Like any other source of music or art, you will have to get a license to avoid copyright infringement claims.