It is no question that politics have become more divisive than ever. People have extremely strong opinions on their political candidates and the political issues surrounding elections.
Musicians, photographers, and other artists are no exception. In 2020, President Trump’s campaign received numerous objections and even cease and desist letters from numerous musicians, including Rihanna, the Rolling Stones, Pharrell Williams, and Tom Petty after Trump used their songs during his campaign. These artists did not support Trump’s message and did not want their music associated with his campaign.
Political candidates often incorporate photographs and other artwork (logos or designs) into their TV advertisements, mailers and emails without obtaining authorization from the artists in advance. But what right do these artists have to prevent the use of their songs, photographs or other artwork in political campaigns?
Copyright protects all original artwork, including music and photographs, from being used by anyone other than the author/owner without permission. Using a song written by someone else without permission during a political campaign could be a violation of the author’s right to perform the song.
However, there are exceptions. One exception includes the fair use doctrine, which permits the unlicensed use of copyrighted works without the author’s permission in certain circumstances. But this doctrine does NOT give political candidates carte blanche right to use copyrighted works in any way they desire. Instead, it is a very complex, fact intensive inquiry that must be carefully navigated.
Particularly, courts look at several factors to determine whether the use of the copyrighted material is fair use. These factors include:
(1) the purpose and character of the use – such as whether it is for a commercial or educational purpose or whether the use transforms the copyrighted work (using a copyrighted photo to make fun of or point out deficiencies in a political opponent might be considered transformative);
(2) the nature of the copyrighted work – including how creative the work is (music is usually deemed pretty creative, while a documentary containing a lot of facts and data will likely be deemed less creative);
(3) the amount and substantiality of the portion used in relation to the work as a whole – the more of the copyrighted material you use, the less likely the use might be considered fair use (using an entire song before a campaign speech may not be fair use); and
(4) the effect on the market for the copyrighted work – does the use decrease the artist’s ability to obtain revenue and market the work (when a politician uses a song without permission, that use directly affects the artist by a loss of income).
Because of the difficulties in determining what use is fair and what use needs to be licensed, it is imperative that candidates and other political groups seek advice from a qualified copyright attorney before using copyrighted material in their campaigns. Obtaining the appropriate permissions and licenses to use the works prior to incorporating them into campaign materials is often safer and may avoid take-downs and cease and desist letters from artists.
The foregoing should not be understood as, or considered a substitute for, legal advice. For specific inquiries, please contact Tynia A. McQuigg or another licensed attorney.
Tynia A. McQuigg is an attorney with Crowe & Dunlevy, crowedunlevy.com, and a member of the Intellectual Property Practice Group.