INTRODUCTON

            The use of music and images to convey a political message is as old as political campaigning itself and presidential politics is the king of copyright co-optation. George Washington’s campaign used a version of Hail to the King which replaced the word “king” with “Washington” as early as 1786, three years before Washington would become the Nation’s first President[1]  On behalf of John F. Kennedy, Frank Sinatra changed the lyrics of his 1959 hit single, High Hopes for the 1960 Democratic presidential candidate.[2] Broadway lyricist Sammy Cahn, who wrote a number of Sinatra-sung hits, altered another one of Sinatra’s hits he had written, adapting My Kind of Town (Chicago is) for Michael Dukakis’ 1988 campaign. The result was a song worthy of a flop like Dukakis, My Kind of Guy (Dukakis Is).[3] Of all the co-opted songs it perhaps it was Bill Clinton who did it best. Clinton took Fleetwood Mac’s “Don’t Stop” and made it his own. Clinton took the number 3 song of 1977 and repurposed it as his personal campaign song, going so far as to convince the long-disbanded Fleetwood Mac to reunite for a special performance of “Don’t Stop” at his 1993 inaugural ball.[4]

While presidential candidates have been using music to enhance their campaign, campaigns and the politicians themselves have been using images to convey a message as well. Newt Gingrich released a photo of his “Conservative Dream Team” in which he stands center shot, and on either side stand members of the Republican party who support the Presidential Candidate.[5]  The image draws recollections of  the Emmy Award Winning NBC Show “The West Wing” and its DVD Box Set cover of Season 1.[6]

Yet another GOP Presidential Candidate this cycle has been accused, albeit only on the blogosphere, of co-opting a popular logo. Rick Santorum, the former Senator from Pennsylvania unveiled his new logo which contains a red eagle soaring surrounded by a circle of stars.[7] Internet comments have already likened the image to the logo from the popular book and movie series The Hunger Games, which contains a similar bird-like logo.[8]

The most notable image co-opted by politicians in recent memory was an Associated Press photograph used by an artist to create the iconic red-white-and-blue Barack Obama “HOPE” poster from the 2008 campaign, which culminated in the case of Associated Press v. Fairey..[9]

Historically, politicians have used already existing music or images on the campaign trail, in victory speeches, and in their advertising. They adopt already existing themes from photographs, images, or logos to convey their message and use music and lyrics to try to sell to the American people a set of morals, ideas and ideals. They do this, however, using someone else’s original work, molding and bending the work to fit their particular purpose.  Political campaigns seem to disregard the property rights that copyright law assert. The finite length of campaigns and the limited funds of the candidate ensure that they are essentially judgment proof if sued by a copyright holder. The use of copyrighted works by politicians often is in tension with the purpose of copyright law[10], however politicians can sometimes escape violations of copyright law by exercising exceptions within the copyright statutes themselves. With music, the proper licenses and permission of the artist should give the politician freedom to use the music, or the politician could find protection by claiming fair use. With respect to images, it is often argued by politicians that these images are exempt from copyright protection because they are excepted under copyright’s fair use doctrine.[11] Whether through licensure or fair use, there is no shortage of litigation[12] when politicians choose to use popular music or images in an effort to win a vote. However, campaigns are finite in nature and the penalty for copyright violation is nominal. As such, politicians seem undeterred from violating the property rights of the copyright holder in an effort to win elections and garner popular support. Throughout this paper I will discuss the use of images and music and how the law of copyright relates to each, exploring the doctrines of fair use and parody as well as licensure and permissive use.

COPYRIGHT LAW

A copyright is a type of property ownership. Copyrights grant individuals the exclusive right to use and disseminate their creative works for a fixed number of years.[13] The Constitution of the United States grants Congress the power to protect copyrights specifically in the copyright clause of Article I.[14] Today, copyright protections are governed by the Title 17 of the United States Code.[15]

In order for a work to be protected by copyright it must meet two requirements.[16] First the work must be an original work, not a copy.[17] Second the work must be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated.”[18] The types of work that can be copyrighted include sound recordings, musical works, literary works, pictorial and graphic works.[19] Ideas, facts and principles, however, cannot be copyrighted.[20]

Generally, copyright protection is granted for the life of the author plus seventy years.[21] After the copyright expires, the work will become part of the public domain, allowing the public to use the work without restriction.[22]

Title 17 also grants exclusive rights to the owner of the copyright, including the right to publicly perform, publicly display or create derivate works based on the copyrighted original work.[23]

Copyright infringement occurs when an individual violates one of the express rights of the copyright owner.[24] For a plaintiff to succeed in a copyright infringement action, a plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[25] The courts determine whether a copyright is infringing by comparing the alleged infringing work to the original work to determine if there is a “substantial similarity” between the works.[26] The standard for determining copying is “‘substantial similarity’ between the copyrighted work and the allegedly infringing work.”[27]

Those wishing to use copyrighted material in political campaigns have a multitude of avenues to pursue to avoid copyright infringement. The campaigns can seek to license the work, seek permission of the owner to use the work, they can invoke the First Amendment’s political free speech protection or claim that their use of the copyrighted material is excepted as “fair use.”

1. A.    Licenses and Permission To Use

The right to public performance is an exclusive right of the copyright holder or any authorized licensee.[28] Copyright law defines public performance as a performance that takes place in a place that is open to the public.[29] Also a public performance can include a performance[30] in any place where the number of people present is greater than the “normal circle of a family and its social acquaintances.”[31]  Performances transmitted or otherwise communicated by means of any device or process, such as performances via broadcast, telephone wire, or the internet, to the public are also public performances.[32] The law requires users to obtain authorization not only for performances by live musicians, but also for performances by mechanical means, including videotapes, CD’s, MP3s  karaoke, jukeboxes and radio, internet and TV reception.[33]

An individual may use copyrighted works, specifically music, if they obtain a license to do so.[34]  United States copyright laws vest property rights in artists’ musical works, giving them the exclusive right to perform the work or authorize the performance of their works in public. [35] This means that an individual cannot perform a musical work in public without the copyright owner’s permission.[36] Also, the owner of the copyright must be paid for the use of their work, unless the work is donated.[37]

Using a musical work without permission of the copyright holder or without obtaining a license from the copyright owner or performing rights organizations can result in damages. The minimum amount of damages a court can assess is $750 for each work that is infringed. The court may also require that the infringing party pay the copyright owner’s attorney fees and court costs, or the court could enter an injunction against the infringing party requiring them to cease and desist all further use of the work.[38]

In practice, those wishing to use a copyrighted work don’t need to always get permission from the copyright holder, they can obtain licenses as a cost of doing business. ASCAP explains that under the law:

Owners or operators of facilities or presenters of concerts and other events are responsible for performances on their premises. Technically, everyone who participates in an infringing performance is liable and copyright owners can sue the event presenter or owner of an establishment as well as the members of the band or the DJ who actually gave the unauthorized performance.[39]

Copyright scholars agree that while the copyright holder may grant permission to use the work, you don’t need an artist’s permission to use their copyrighted work so long as you pay for what is called a “blanket license.”[40] A blanket license permits the licensee to publicly perform or use for profit in a nondramatic manner any song the license covers in return for either a flat fee or a percentage of gross receipts without having to seek the permission of each individual copyright holder, and regardless of whether the individual copyright holder would have denied permission to the licensee if asked personally.[41] If  a blanket license does not cover use in a particular venue, the individual seeking use can negotiate with the individual copyright holder to secure the right to perform the copyrighted work.[42]

If a blanket or individual license cannot be obtained, either because the venue does not have a license or they are too costly[43], the individual seeking to use the copyrighted material may ask permission of the copyright holder.[44] Copyright law expressly grants the holder of the copyright the right to give permission to use a work.[45] This is far more common in the context of using copyrighted material in television advertising.[46] If permission is granted by the holder of the copyright, the individual using the material typically pays a fee or royalty to whoever owns the copyrighted material for their use.[47] Lawrence Iser, an entertainment lawyer in Los Angeles, says, “just as if you were making commercials for any product you can think of — if you wanted to put that onto television, you want to put commercials on YouTube, you want to make any kind of audio/video work that contains music — you do need to have licenses, you do need to have permission.”[48]

1. B.     The Fair Use Exception

Fair use is a defense used in copyright actions to protect a party who is using copyrighted works for limited purposes such as comment, critique, teaching, or news reporting, among others.[49]  Fair use acts an exception to the copyright holder’s exclusive rights in the work.[50] Fair use allows those who don’t own the rights to the copyright to use the copyrighted material without the copyright holder’s permission.[51]

Copyright owners possess exclusive rights in their copyrighted work.[52]  Those exclusive rights are:  the right to reproduce the work, distribute the work, create derivative works, display the work, and perform the work.[53]  Legitimate  users of copyrighted material have rights as well, which are designed to promote “the progress of science and the useful arts.”[54]  Copyright users’ rights include the right to use a work in a manner that is consistent with the rules of the fair use doctrine.[55]  Generally, “copyright owners retain control over the creation of derivative works while users possess the right to create transformative works under the rules of fair use.”[56]

Fair use works to balance the free speech and free dissemination of ideas against society’s desire to protect the artists’ creative works.[57] Commentators claim that fair use works to enable creativity “by allowing artists and authors to borrow from others when necessary and appropriate.^”[58] The Copyright Act sets forth a four factor test courts weigh when analyzing whether an individual’s use of the copyrighted work is, in fact, fair use.[59] Courts to weigh the following factors when analyzing fair use:

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 upon the potential market for or value of the copyrighted work.[60]

The “ultimate test” of fair use is to determine whether allowing the disputed use would serve copyright law’s goal of “promoting the Progress of Science and useful Arts” better than prohibiting the use would.[61] The scope of the fair use defense is not limited to the four factors of 17 U.S.C 107. It also may be expanded when issues of public concern are involved.[62] As a result, the four factors of fair use do not constitute an exclusive list, courts may consider other factors as well when determining whether use constitutes fair use.[63]

Parody is one type of fair use that politicians frequently rely on to escape copyright infringement.[64] It is also one type of fair use that  has been upheld by the courts.[65]  In Campbell v. Acuff-Rose Music[66] the Supreme Court stated that parody is the use of some prior elements of an artist or author’s composition to create a new work that comments on the author’s work in part or in whole.[67]  The fact that the parody comments on the older work is the primary method by which courts grant a parody is fair use.[68]

In determining fair use one of the most important questions the court must assess is whether the potentially infringing, or “secondary,” work is ”transformative” or “derivative.”[69] A transformative work is a work that adds something new to the original work, either by giving it a different purpose or charter or by altering the meaning, message, or expression.[70] However, it is not absolutely necessary that a work be transformative, a court may still find, using the remaining factors or outside factors, that the use is fair use.[71]

Secondary works may also be considered transformative if they are a parody of the original work.[72] A parody uses a portion of the work in an effort to comment on or ridicule or make light of the original work.[73] When determining fair use for parody the court must find that the parody can be reasonable perceived by the ordinary viewer of the secondary work.[74] Most importantly, for the court to find fair use by parody in a secondary work, “commentary on the original work should have been intended when the secondary work was created.”[75]

A “derivative work” is a work based upon “one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version… art reproduction…or any other form in which a work may be recast, transformed, or adapted.” [76]  A derivative work doesn’t add anything new, it recasts the original work in a new or different light instead of simply building upon it in a transformative manner.[77] The owner of the original work has control over the creation of derivative works and may either personally create the work or authorize someone else to create the derivative work.[78] Copyright owners may keep a third party from creating derivative works and are under no legal obligation to allow others to make derivative works, even for a fee.[79] With the expiration of the copyright, the rights of the copyright owner also expire[80] thus, when the copyright expires the work will go into the public domain, which allows the public to freely create derivative works without the copyright owner’s permission.[81]

MUSIC: Sing Us a Song, You’re the President

In 2008, John McCain, in his presidential campaign, used the Heart song “Barracuda” to introduce his Vice-Presidential Nominee Sarah Palin.[82] Palin had been given the nickname “Barracuda” in high school because of her aggressiveness as a high school basketball player.[83] Palin “attempted to assume the 1970s Heart hit by the same name as her personal theme song, playing it at each of her campaign appearances.”[84] When the band Heart became aware of Palin’s use of the song in her campaign appearances they publicly denounced use of their song by the Vice-Presidential Candidate and ordered the campaign to cease all further use of Heart’s works.[85]  While a number of other artists were critical of the McCain campaign’s use of their songs throughout the campaign[86], (ONLY?) Jackson Browne exercised his copyright protection and filed suit in the United States District Court for the Central District of California.[87] Browne alleged that the McCain camp had used his song “Running on Empty” in the background of a campaign advertisement. The court held,  that the use of Jackson Browne’s song was not a “transformative” use of the work and was also not protected political speech under the 1^st Amendment.[88]

If the McCain campaign first obtained a blanket license from the performing rights organization[89] of which the copyright holders of the musical works were members, there was no violation of United States copyright law for the public performance of works like “Barracuda” or other songs the campaign used at rallies.[90] However, because the campaign had failed to obtain a blanket license granting them use of the copyrighted works by Heart and Jackson Browne, they were infringing the exclusive rights of the copyright holders.[91]

Obtaining a blanket license is the primary way in which political candidates can seek to avoid copyright infringement. Artists often sell the rights to their music to licensing companies like ASCAP or BMI, which are performing rights organizations. Politicians seeking to use a copyrighted music can obtain a license to use the work in their stump speeches, campaign rallies and for other campaign purposes from the performing rights organizations. The blanket license allows them to use the music for their political purpose while paying a fee or royalty to the performing rights organization instead of the individual artist for each individual use of the work. This allows the politician, or licensee, to use the work as many times as needed while paying one flat fee, instead of paying a royalty for each individual use.

Most recently, the band Survivor sued presidential candidate and former Speaker of the House Newt Gingrich over his use of the song “Eye of the Tiger” at campaign rallies.[92]  The complaint against Gingrich states that:

Newt 2012’s and Mr. Gingrich’s unauthorized public performance, or inducement of or contribution to the public performance, of the copyrighted work infringes Rude Music’s copyright. Union’s reproduction and distribution of the video recordings, featuring Mr. Gingrich and “Eye of the Tiger” is unlicensed and unauthorized, and also infringes Rude Music’s copyright in the composition.[93]

The suit lists appearances by Gingrich at the CPAC (the Conservative Political Action Conference) in 2009, 2010 and 2011 and numerous campaign stops in Iowa among the events at which the candidate used the song without permission.[94] The complaint cites internet videos featuring Gingrich that have been posted by American Conservative Union as well.[95]

Gingrich responded by claiming that he had been given little notice of the alleged infringement and also claimed that he had purchased a license to perform the work.[96] His attorney said in a brief responding to the complaint, “ASCAP, with which Plaintiff is affiliated, offers a ‘campaign license’ for public performance uses associated with political campaigns including public performances at campaign events and on campaign websites.”[97] The brief goes further claiming that, “Plaintiff evidently conducted no investigation into whether any performing rights organization licenses existed for the four (4) events depicted in the Complaint.”[98]

Peter DiCola, law professor at Northwestern University, says most public venues do have blanket licenses that can be purchased by politicians.[99] He notes, however, that small or unconventional venues may not have licenses, including a few of the venues that are mentioned by name in the Survivor complaint.[100] “The complaint is cleverly written actually,” said DiCola.[101] “The venues they mention include Gingrich using the song in a Moose Lodge and an excavation plant. And those are public places that might not as a matter of course acquire blanket licenses.”[102] Aside from getting blanket licenses, politicians or campaigns, such as the Gingrich campaign, may also seek permission of the artist to use the copyrighted work and avoid copyright infringement. The giving of permission is a less likely scenario, however, as the artist typically does not get paid for giving their copyrighted work away. Also, a politician receiving permission would likely depend on the artist’s political affiliation. A conservative artist would not likely give permission for a liberal candidate to use his work freely and vice versa.

While it is too soon to determine the outcome of the Gingrich litigation, and many of these types of suits settle out of court,[103] it is evident that politicians are using copyrighted musical works to charge up crowds and convey ideas. Often they are doing so without regard to the copyright holders’ exclusive rights.[104] The reasons seem to be that the fines for using copyrighted works are nominal[105] but also because the length of a law suit is often far longer than the length of a campaign.  There is no incentive for a politician to go the extra mile to obtain and pay for a license when the cost of violating the copyright is low. Politicians can simply infringe the copyright and either hope they don’t get caught or claim fair use when they do. Then, politicians can put up enough defenses throughout the campaign, continue the use of the music they want to use and then, when the campaign is over, settle out of court for a nominal fee. Fair use, indeed.

IMAGES & ADVERTISING: A Picture is Worth a Thousand (or Million) Votes

Politicians use images in campaign posters, bumper stickers, and campaign websites. Their tour busses are emblazoned with campaign logos and symbols. Often times these images are examples of parody, transformative or derivative works, playing off of an original copyrighted work to create a different work, one that is then used for the politicians’ benefit. Politicians claim that their use is fair use, while copyright owners claim infringement. The result however, is political use of images and advertisements to convey a political message.

An example of transformative use occurred in the 2008 presidential campaign. In 2007, Barack Obama, then the junior senator from Illinois, became the presumptive nominee for President of the United States for the Democratic Party. Captivated by the young Senator’s message of “hope and change” street artist Shepard Fairey created what would come to be one of the most iconic campaign posters in recent memory.[106] The image was a red-white and blue computerized painting of Obama with the simple word “HOPE” underneath.[107] The poster sold like wildfire, adorning websites, posters, stickers, t-shirts, and campaign buttons.[108] Fairey, however, did not create the image himself. He did not draw the iconic image of the would-be President.[109] Instead, he used a photograph taken at National Press Club on April 27, 2006.[110] The photograph was taken by the Associated Press, who subsequently argued that AP owned a copyright on the image.[111] What ensued was a lengthy and public battle over the rights to the image, the rights to the HOPE poster, and the ensuing profits. The lawsuit eventually settled out of court for an undisclosed amount.

The issue of parody in campaigns is also prevalent. In MasterCard Int’l, Inc. v. Nader 2000 Primary Committee, Inc.,[112] the District Court for the Southern District of New York (S.D.N.Y.) addressed the parody fair use defense in the context of a political campaign.[113]  During the height of the 2000 presidential campaign, MasterCard filed suit against Ralph Nader, then running as an Independent, for alleged copyright violation.[114]  MasterCard claimed that one of Nader’s political advertisements had been modeled after the MasterCard “Priceless” advertising campaign.[115] The Nader advertisement parodied the MasterCard ad by listing items “synonymous with dirty politics, the ‘prices’ for each item, and then stating at the conclusion: ‘Finding out the truth: priceless. There are some things money can’t buy.’”[116] On summary judgment, the court held that the Nader advertisement was a fair-use parody of the MasterCard advertisements.[117]

In determining that the Nader ad was fair use, the court examined the first and fourth fair use factors most closely.[118] They court held that the Nader advertisement was transformative because it conveyed a different message than the MasterCard ads, and was a commentary on dirty politics wrapped in MasterCard’s sugar coating of materialism.[119]The court concluded that parody in a secondary work need only be reasonably perceived, and held that the advertisement was sufficient parody for the purposes of fair use.[120] The court was most persuaded by the fourth fair use factor[121] because the Nader advertisement served a political purpose which was distinct and entirely different from the MasterCard advertisement’s purpose.[122] In the end, by weighing all four of the fair use factors, the court held that the Nader advertisement constituted fair use of MasterCard’s copyright.[123]

Politicians have also dealt with copyright issues in advertisements that use broadcast news clips to convey a message. These are traditionally attack ads, which seek to use an opposing candidate’s own words, typically from a broadcast news show, in an attempt to show the opponent’s beliefs. Most recently presidential hopeful Mitt Romney and Robin Carnahan, Secretary of State of Missouri and United States Senate candidate, used these types of ads to attack opponents.[124]

In 2010, Fox News Network filed a lawsuit against Missouri Democratic Senate hopeful Robin Carnahan over use of broadcast footage in an ad attacking her Republican rival, then Congressman now Senator, Roy Blunt.[125]  Carnahan’s commercial featured broadcast news clips from a 2006 interview of Roy Blunt by Fox News anchor Chris Wallace.[126] The advertisement featured clips of Wallace asking Blunt about the criticism he had received because of his ties to lobbyists.[127] The lawsuit filed, in Kansas City federal court claimed that the “smear ad” infringes on a Fox News copyright, improperly misappropriated Wallace’s likeness, and created a false impression that Wallace had endorsed Carnahan.[128] “The Carnahan Ad is designed to make it appear as if Wallace – a trusted journalist – is instead speaking as a campaign operative,” the suit claimed.[129]

Nearly three months after Blunt defeated Carnahan,, the campaign and Fox News settled out of court.[130] As a part of the settlement the Carnahan campaign conceded that the footage from Fox was used in a manner that exceeded what was permitted by copyright.[131] The campaign originally believed that the commercial was permissible under the copyright fair use doctrine.[132] Despite this belief, the campaign acknowledged that the amount and kind of footage, as well as the manner in which it was used, exceeded the fair use exception and violated copyright law.[133]

This campaign cycle, Republican presidential hopeful Mitt Romney is facing a similar situation to the one that faced the Carnahan campaign two years earlier.[134] NBC sent the Romney campaign a cease and desist letter claiming that a TV ad made up entirely of a 30 second clip from a January 21, 1997 episode of NBC’s “Nightly News” program hosted by Tom Brokaw violates copyright law.[135]  In the ad,  Brokaw announces the House Ethics Committee’s decision to penalize then-Speaker of the House Newt Gingrich but contains no other voiceover or images, except the statement “I’m Mitt Romney and I approve this message.”[136]  The Romney campaign argued that it was well within its rights to run the TV ad and that its use of the news clip “falls within fair use” and, therefore, does not violate copyright laws.[137]

NBC’s focus was primarily on the first factor of the fair use doctrine, claiming that the TV ad is being used for commercial purposes.[138]  As Geri L. Haight explains:

“The clip is used in a political ad that seeks, among other things, donations to fund Romney’s campaign against Gingrich.  But Romney’s campaign has stressed that it used only 30 seconds of a much longer broadcast and that it is using the clip for the content of the facts conveyed (regarding Gingrich’s past ethics violations), not for the particular style of the delivery of those facts.”[139]

The US Copyright office claims that the distinction between fair use and infringement is often unclear and not easily defined however.[140]  This may be a problem for Romney, as it was for Carnahan, in that the advertisement is not transformative but rather entirely derivative of a NBC copyright. Romney seems to be using the clip to comment on Gingrich’s representations during the campaign regarding these past ethics violations, using NBC’s work verbatim to do so.[141]  Because fair use is so open to interpretation, however, the Romney campaign runs the risk of fair use not applying to the TV ad[142]

Campaign advertising and images intersect with copyright law quite often. The same issues that arise with music, arise with images and advertisements. However, fair use defenses are more applicable in this context. If politicians are able to show that their advertisements are transformative, parody or permissive derivations of copyrighted works, they are permitted to use the copyrighted work. However, sometimes, as was the case with Robin Carnahan and Shepherd Faiery, the argument is not water tight, and settlement is likely. Again the costs of infringing copyright is low and the campaign season is finite, thus politicians are incentivized to continue violating copyright law because by the time they can be punished the violation of copyright their violation has already achieved the ends its means intended. They have won the election or raised the money needed to continue campaigning.

CONCLUSION

            Political campaigns are marked by the desire to express ideas and beliefs on a grand scale. The use of music and images, advertising and websites, are all great ways in which politicians can convey their ideas. They often run afoul of copyright laws intended to protect property rights. Though licensing music, or claiming fair use in the use of images or advertisements, politicians seek to find exceptions to their use of copyrighted work. However, politicians also use copyrighted works with little regard of the consequences. The punishment for infringing copyright is often insignificant (with the exception of injunctions which prevent the politician from using the copyrighted work at all). The length of a political campaign is finite. Politicians seemingly can use the copyrighted work with little regard for the consequences, so long as the copyrighted work serves the purpose it was intended. As long as they raise the money needed, convey the message desired and get the votes they’re courting, politicians seem to have little regard for the property rights they are violating. Copyright violation, therefore, seems like a sunk cost of campaigns.