Trademark & Copyright Law Blog : Intellectual Property Lawyers & Attorneys : Foley Hoag Law Firm : Washington D.C., Boston

 Along with January’s hot activity in the race for the Republican Presidential nomination, we also saw the emergence of two more stories about the intersection of intellectual property and political ads.

One issue is “déjà vu all over again”: political fair use. We are once again confronted with the question of to what extent the fair use doctrine (http://www.copyright.gov/fls/fl102.html) allows for the use of copyrighted news clips in political advertisements. We’ve previously written about this issue here, here, and here.

This time, it’s Mitt v. NBC. On-again off-again front runner Mitt Romney has issued an attack ad against latest rival Newt Gingrich. The ad, entitled “History Lesson”, is little more than a short clip of a 1997 episode of NBC’s Nightly News, reporting that Gingrich was found guilty of ethics violations. Along the bottom, just under Tom Brokaw’s tie, are the words “Paid for by Romney for President, Inc. Approved by Mitt Romney.”

Upon seeing the ad, NBC’s vice president of media law, David N. Sternlicht, shot off a missive to the Romney campaign, demanding that NBC’s copyrighted material be taken out of the ad. The Romney campaign says that it intends to keep running the ad (unlike the last time, when it backed down after a similar demand from CNN of an anti-Perry ad).

This time, the story also has a twist. NBC is claiming that, in addition to the copyright violations, the ad falsely implies that NBC or Tom Brokaw have endorsed its content. Mr. Sternlicht wrote that “[a]side from the obvious copyright issues, this use of the voice of Mr. Brokaw and the NBC News name exploits him and the journalistic credibility of NBC News.” Tom Brokaw issued a similar statement, reported in the Washington Post: “I am extremely uncomfortable with the extended use of my personal image in this political ad.” In other words, NBC and Brokaw are asserting that, in addition to infringing on their copyright, the ad is also a violation of their “Right of Publicity” or perhaps a False Designation of Origin under the Lanham Act.

Neither NBC nor Brokaw have filed suit yet but, in a similar case, candidate Ron Paul has done just that. On January 4, 2012, an anonymous YouTube user named “NHLiberty4Paul” uploaded a vicious advertisement, subtitled “The Manchurian Candidate,” which alleged that then-candidate John Huntsman was beholden to Chinese interests. The ad ends with the text “VOTE RON PAUL.”

Within less than 10 days, Paul initiated a lawsuit in the Northern District of California against the anonymous makers of the ad. Paul claims include False Designation of Origin under the Lanham act and common law defamation.

So far, things haven’t been going well for the Paul lawsuit. Paul sought immediate discovery from YouTube in order to discover the identity of NHLiberty4Paul, but Magistrate Judge Maria-Elena James denied the request without prejudice on the grounds that Paul’s motion had failed to address the legal standard for expedited discovery. Otherwise, the case appears to be proceeding in the normal course. We’ll keep you posted.

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Political primary season is upon us and, just like a bad hangover, one particular political speech question just keeps creating headaches. To what extent is the unauthorized use of copyrighted material in political campaign advertisements protected by the fair use doctrine? Can political ads borrow a clip from a presidential debate? From a televised sporting event? How about a photograph created by an opponent’s campaign?

We previously reported on copyright dustups over the “Miracle On Ice” ads by former U.S. Presidential candidate Tim Pawlenty, and attack ads against Canadian Liberal Party leader Michael Ignatieff. In both of these instances, political campaigns ads used copyrighted material from major news organizations. In each case, the news organizations made some noise about copyright infringement and then backed down before things got litigious.

Then, in October, as reported by Talking Points Memo’s Benjy Sarlin, Presidential candidate Mitt Romney’s campaign released the “Ready to Lead?” internet attack ad against Texas Governor Rick Perry. The ad questioned Perry’s general competence with clips of “brutal” reviews of his debate performances by television commentators from CNN, FOX and elsewhere. (In one clip, Fox News’ Britt Hume announces: “Perry really did throw up all over himself in the debate.”). CNN, claiming copyright infringement, demanded that Romney remove the video from the internet. This time, it was the candidate that backed down. Romney’s campaign vigorously claimed that it was protected by the fair use doctrine . . . but nonetheless took the video down only a few hours after it was posted.

So is anybody going to hang in there, to sue or be sued, so we can develop some modern case law on this issue?

The latest candidate for political fair use torch-bearer is Los Angeles County Deputy District Attorney Alan Jackson. In his bid to knock City Attorney Carmen Trutanich out of the race for Los Angeles District Attorney in 2012, Jackson released an attack ad inspired by “The Hangover” movie franchise, featuring various photographs of Trutanich instead of the movie characters.

So, who’s complaining? The producers of the “The Hangover”? Nope. The Trutanich campaign? Well, maybe. The Contra Costa times has reported that the photographs of Trutanich which were used in the ad were actually taken by a Trutanich campaign photographer in 2009. The photographer has retained counsel and sent a demand letter threatening a copyright infringement claim. Jackson’s campaign, for its part, has invoked the First Amendment, presaging a fair use defense.

Is this one going to go the distance? Will the photographer really bring suit and force Jackson to defend on the basis of fair use, perhaps resulting in a big fat juicy Ninth Circuit opinion? Or, as the Jackson campaign has implied, is the threatened lawsuit nothing more than a concoction of the Trutanich campaign, designed to evaporate once the requisite political points are scored? If history is any judge, it will probably be the latter, and we’ll be left to nurse our political fair use headaches once again.

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Several months ago, we highlighted the Canadian Conservative party’s use of the Canadian Broadcasting Company’s copyrighted footage in political attack ads. (Not Quite Fair Use: Canada's Fair Dealing Exception to Copyright Infringement in the Political Spotlight). In defense of its ads, the Conservative party argued by analogy that such use of copyrighted material for political purposes would be “fair use” in the United States.

ABC Sports has a chance to test that theory.

Last Wednesday, former Governor and Republican presidential candidate Tim Pawlenty began running ads comparing his underdog political campaign to the 1980 United States Olympic hockey team and its “Miracle on Ice” win over the Soviet Union. In the ad, Pawlenty freely uses footage and voice-over sound owned by ABC Sports. Pawlenty’s campaign didn’t bother to seek permission from ABC Sports, claiming protection of the fair use doctrine.

The next day, the Des Moines Register reported that ABC Sports was considering issuing a cease and desist order to the Pawlenty campaign. However, the broadcaster later dialed it back, stating that it hadn’t yet decided what to do.

Pawlenty’s campaign is currently attracting only about 3% of likely Republican voters, according to polls. His campaign’s slow fade into obscurity may therefore render ABC Sports’ concerns moot as a practical matter. But what if Pawlenty’s bid to associate himself with bygone sporting glory rallies the voters, and the “Miracle on Ice” footage ends up getting used in thousands of Pawlenty ads across the country, not just a few in Iowa? Will ABC Sports act, or just let it go? Time will tell, but for now it appears that ABC Sports is going to stick to the hockey arena and stay out of the political one. Some full-contact sports are just too rough.

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In a bid to win the hearts and minds of voters, lately political candidates have touted, among other things, their musical predilections. In at least two recent cases, candidates have sanctioned the alteration of the lyrics, but not the tune, of some of their favorite music to shore up political support. The musicians who own the copyrights in those songs weren’t exactly thrilled.

All They Want To Do Is Campaign

In April 2009, various musicians, including Don Henley, sued Charles DeVore, who unsuccessfully sought the Republican nomination for a U.S. Senate seat currently held by Senator Barbara Boxer, for, among other things, infringing the musicians’ copyrights. The musicians alleged (PDF) that DeVore produced videos reworking the lyrics of the musicians’ songs “The Boys of Summer” and “All She Wants to Do Is Dance” into songs titled “The Hope of November” and “All She Wants To Do Is Tax,” which poked fun at President Obama, his supporters, and Senator Boxer. DeVore asserted that “The Hope of November” and “All She Wants To Do Is Tax,” constituted parodies, and were thus protected by the fair use doctrine. Specifically, DeVore maintained that the altered songs commented on political views conveyed in the songs. On cross-motions for summary judgment, the court disagreed (PDF), reasoning in large part that DeVore’s videos did not target Henley’s political views so much as they targeted views that may have been held by Henley (the court noted that Henley disputed DeVore’s assumption that he held liberal-leaning views, but explained that its inquiry focused on whether a work’s parodic character could reasonably be perceived).   DeVore recently apologized for using the musicians’ work without their permission and settled the matter for an undisclosed amount.

In another case this past January, Peter Paterno, an attorney for Joe Walsh, a guitarist for the Eagles, wrote to Joe Walsh (PDF), a Republican candidate for Congress, about the unlicensed use of his client’s song, “Walk Away,” in which the narrator ostensibly recounts his unsuccessful efforts to mend his relationship with an uninterested partner, to compose “Lead the Way,” which extolls Joe Walsh’s ability to “lead the way” in battle against Democratic policies and positions.  In the bitingly sarcastic letter, Paterno demanded that the candidate discontinue his unlicensed use of Walsh’s song.  Walsh refused, claiming that “Lead the Way” was a “parody song of the political process.” However, a “parody of the political process” standing by itself is insufficient to demonstrate the parodic nature of the work for purposes of a copyright infringement; rather, Walsh had to show that “Lead the Way” lampooned or commented on “Walk Away.” Perhaps having realized that his song had very little, if anything, to do with trying to fix a broken relationship, Walsh ultimately decided to take “Lead the Way” down from his website.

Fair Use Funny?

For purposes of a copyright infringement action, a work qualifies as a parody if it uses aspects of a copyrighted work to create a new work that comments on the underlying copyrighted work.

Owing to the limitation that a parody comment on an underlying copyrighted work, parodies enjoy a somewhat favored status under the fair use doctrine. This is because the four factors used to determine whether the fair use doctrine protects a putative parody—the purpose and character of the use, the nature of a copyrighted work, the amount copied, and the effect upon the potential market—typically weigh in favor of finding that an alleged parody constitutes a fair use since a parody by its very nature is transformative and expressive, requires significant borrowing from the underlying work, and the author of a copyrighted work will not likely license a work criticizing the author’s own work.

In contrast, satirical works, which use another’s work to comment on something other than the underlying work, do not necessarily fare as well under these factors because satirical works typically require greater justification for appropriating a copyrighted material. For this reason, would-be satirists often try to stretch the meaning or message ascribable to a copyrighted work in order to assert a parody-based fair use defense and avoid the heavier burden typically applied to satires.

Aren’t There Different Rules For Politicians Political Speech?

The fine distinction between satire and parody exists in a certain amount of tension with the relatively strong protections afforded political speech under the First Amendment.   Although copyright law does not proscribe the substance or ideas behind political messages, it does potentially entitle an author to enjoin the form in which a political message may be delivered.

As the DeVore and Walsh cases demonstrate, parody will rarely, if ever, serve as a viable defense in a copyright infringement action where the allegedly infringing work fixates on a political view rather than the underlying work itself. To stave off claims of copyright infringement, political satirists would thus do well to take aim at works with overtly political tones or otherwise limit their commentary to the works from which they borrow.  

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