Abusing Fair Use: Is It Time to Clarify the Fair Use Doctrine in a Political Context?

It happens every year; a candidate for political office runs a campaign advertisement using copyrighted or trademarked material without the owner’s permission. From Governor Mitt Romney using a 30 second clip of an episode of NBC’s “Nightly News” program hosted by Tom Brokaw, to President Barack Obama using footage of MSNBC’s Andrea Mitchell commentary on the first presidential debate, the campaigns are constantly pushing the envelope. Recently, the AARP and Sesame Street have entered the scuffle requesting the campaigns to stop using their trademarks in campaign material.

Even with these complaints, the campaigns continue to use the intellectual property without the permission of its owners. Campaigns sometimes hide behind the fair use doctrine, while other times they just ignore the request and outright refuse to comply. This strategy could be considered intentional and implemented by the campaigns to gain free press; even if the campaign decides to take the video down after it receives a cease and desist letter, the television and internet media will have already showed the unauthorized content multiple times free of charge to the campaign. Campaigns are certainly abusing the fair use doctrine.

What does this cat-and-mouse game say about our legal system’s ability to protect intellectual property owners and their rights? Is the ambiguity of the fair use doctrine actually doing more harm then good? Should the doctrine be clarified, at least, when applied in a political context? Regardless of what your answer would be to these questions, it is clear that campaigns raising an alleged “fair use defense” anytime they are caught using unauthorized content is certainly doing an injustice to our legal system by distorting the public’s perception of when the fair use doctrine actually applies.

Campaigns and their Involuntary Endorsers?: When Acquiring a Public Performance License isn’t Enough

The campaign season is in high gear and the candidates are organizing campaign rallies in towns all across America in an attempt to convince their constituents that they should be elected for political office.  To effectively do so, candidates have always used music as a medium to capture the essence and theme of their campaign.

Though music at campaign rallies is as American as apple pie, many campaigns are learning the hard way that in order to play a song, they may need to do more than just acquire a public performance license from ASCAP, BMI or SESAC.  The blanket licenses offered by these performing rights organizations (“PRO”) do shield campaigns from copyright claims, but musicians are now exercising their rights beyond those given to them under the U.S. Copyright Act.  Recently, campaigns are receiving cease and desist letters from musicians alleging a right of publicity claim under state law, a trademark infringement claim, or a false endorsement claim under the Lanham Act solely because the campaign played the song at an event.

Larry Iser, a lawyer who represented Jackson Browne against John McCain and David Byrne against Charlie Crist, argues that “[b]y using someone’s famous song, you are turning that artist into an involuntary endorser of that campaign and message.”  This false endorsement claim, in the context of background music performed at political rallies, has not been decided upon by a court of law as of yet—however, it certainly is a winning argument in the court of public opinion.  In most situations, after receiving a cease-and-desist letter, a campaign will simply stop playing the song.  But do they have to?  Under similar, but not identical facts, the Second Circuit ruled in Oliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2001) that a musician cannot assert a false endorsement claim because a company used the musician’s performance of a song in their television commercial.  It stated that such a right is unprecedented and would be “profoundly disruptive to commerce.” Adopting its reasoning, the court in Henley v. DeVore, 733 F. Supp. 2d 1144 (C.D. Cal. 2010) agreed that a false endorsement claim under the Lanham Act cannot be maintained “based purely on the use of [a musician’s] songs” by a campaign in a campaign video.

Though these cases involved audiovisual works, which require a synchronization license, it is reasonable to assume that the courts’ reasoning would also apply to the public performance of music at a campaign rally.  Ben Sheffner, former Special Counsel on John McCain's presidential campaign, argues that recognition of a false endorsement claim for the public performance of music would “in fact harm copyright owners' ability to license their works.”  He claims that if a licensee, such as a bar, music venue or even campaign, secures a bona fide blanket license from a PRO, thus paying all known right holders a fee to publically perform the song, it would be illogical to allow musicians to go back and demand additional compensation under a claim of false endorsement.

Though a false endorsement claim for publicly performing a song does not have much legal support today, this may not be the case in the future.  Cycle after cycle, cease-and-desist letters have been effective in preventing political campaigns from publicly performing a musician’s song.  Even though this may be due to a campaign’s unwillingness to engage in a legal battle over these types of matters, campaigns may be doing themselves more harm than good.  By constantly submitting to the demands of musicians, they are effectively admitting that a false endorsement claim may be valid.  In fact, presidential candidate Mitt Romney has implicitly acknowledged this claim when he asked for Kid Rock’s permission to use his song “Born Free” even though he already secured a BMI license to publicly perform it.  The more frequently this acknowledgement occurs, listeners may actually begin to believe that songs publicly performed at campaign events are a form of endorsement by the musician of the campaign and its message; therefore, giving credence to a false endorsement claim under the Lanham Act.