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Are campaigns running on infringement?

Mark Sableman August 29, 2018

As we move further into a political season, we can expect to hear a lot about copyright law. No, not that candidates will campaign for copyright reform or pepper their speeches with their positions on fair use, work for hire, or the first sale doctrine. Rather, candidates will use copyrighted materials without authorization, raising copyright infringement concerns and complaints. This is nothing new — it has happened in most political campaigns in the recent past and is already happening in 2018.

Candidates use lots of different copyrighted materials — photos, print materials, videos, and music. Music seems to be the most sensitive area, particularly because so many candidates seem to pick theme songs written or performed by someone who totally disagrees with the candidate. Ideological differences between a candidate and a song’s copyright owner are substantively irrelevant under copyright law, but they affect the copyright owner's likelihood of objecting to the use.

Senator John McCain's 2008 presidential campaign, for example, attracted several music copyright claims. First, singer Jackson Browne sued the McCain campaign and the Ohio Republican Party for copyright infringement when his song “Running on Empty” was used in an ad by the state party. Later, the campaign received complaints about its use of the Frankie Valli hit “Can’t Take My Eyes Off Of You,” and the “Rocky” theme song.

Similarly, Bruce Springsteen objected to President Ronald Reagan's plans to use "Born in the U.S.A." during his reelection run. In 1988, Bobbie McFerrin, a Dukakis supporter, asked the George H.W. Bush campaign to stop using his hit, "Don't Worry, Be Happy."  More recently, Neil Young objected to Donald Trump's use of "Rockin' in the Free World" at the kickoff event for his presidential bid.

In the print era, candidates regularly reproduced newspaper headlines on their campaign flyers, and even portions or the entirety of news articles, concerning the candidate's brilliant achievements and his or her opponent's corruption and disastrous policies. Newspapers rarely—if ever—complained. But in the video era, broadcast news organizations have been more protective of their content and have filed several cases alleging excessive or misleading use of news footage in political commercials.

Additionally, since many political commercials are posted online even after their on-air run, the Internet has become a major battleground for copyright cases. Several TV news organizations have used the takedown procedures of the Digital Millennium Copyright Act to have political commercials using their content, even small portions of said content, removed from the web. Trevor Potter, a prominent election law expert, has been highly critical of this practice, particularly in his role as general counsel to the McCain presidential campaign.

Already in 2018, a political copyright issue has arisen in Ohio, where gubernatorial candidate Richard Cordray has been criticized for using video from Ohio Channel, the state's government TV channel. And in West Virginia, attorneys for the band Aerosmith demanded the Trump campaign stop using the band’s 1993 song “Livin’ on the Edge.” They won’t be the last political copyright disputes of this season.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group.