The Democratic PAC Priorities USA recently pulled a political ad with footage of Governor Mitt Romney from the opening ceremony of the 2002 Olympic Games in Salt Lake City. The group axed the ad after the U.S. Olympic Committee (USOC) sent a cease and desist letter claiming that use of Olympics footage violated their intellectual property rights. Apparently, both political parties took note: Within days of the ad going offline, the Romney campaign website set to “private” an ad featuring a clip from the 2002 Games and reportedly nixed other planned ads with Olympics footage.
The USOC is not the first to challenge the use of intellectual property in politics. President George W. Bush and Michelle Bachman both received cease and desist letters from musician Tom Petty for using his songs. Others got more than just angry letters. Senators Newt Gingrich and John McCain, former Florida Governor Charlie Crist and former Senate candidate Chuck DeVore each were sued by, respectively, the owner of “Eye of the Tiger,” Jackson Browne, David Byrne of the Talking Heads and Don Henley. Songwriters are not the only ones complaining: a CBS affiliate sent a cease and desist letter to Herman Cain in 2011 and NBC’s legal team wrote a similar letter to Romney’s campaign for using a Tom Brokaw clip.
If heavyweights like McCain and pro-Obama PACs use content without permission, it may be that the only thing between your company and having its content in a political ad is whether ad makers have decided to try using it. What should your company do if it finds itself in the same shoes as Jackson Browne, David Byrne and an increasingly large group of others?
Step 1: Evaluate your legal options (realistically)
The first step is to identify potential claims. The most obvious claim for unauthorized use of video or photos is copyright infringement. Ads may also implicate trademark rights, either by using company logos or implying company endorsement. If an ad uses someone’s voice, name or image, his or her right of privacy against misappropriation may have been violated.
But it is also critical to be realistic and upfront about any weaknesses in available claims. Campaigns facing copyright claims often argue, for example, that they are protected under Section 107 of the Copyright Act, which permits fair use of some content based on the purpose and character of the use, the nature of the copyrighted work, the amount used and the effect of the unauthorized use on the market for or value of the copyrighted work. Trademark claims face similar potential defenses. Some courts have held that use of trademark in a political ad is “completely noncommercial, political speech” and not infringement. American Family Life Ins. v. Hagan. Misappropriation claims face bars where the use is newsworthy. Messenger v. Gruner + Jahr Printing & Publ’g).
Nevertheless, courts have found that some political ads do cross the line. In Jackson Browne’s copyright suit, the court emphasized that “the mere fact that plaintiff’s [copyright infringement] claim is based on defendants’ use of his copyrighted work in a political campaign does not bar plaintiff’s claim as a matter of law.” Browne v. McCain. In Don Henley’s suit, the court rejected the fair use defense in part because DeVore “stood to gain publicity and campaign donations from [his] use of Henley’s music.” Henley v. DeVore. Trademark and misappropriation claims based may cross the line to a commercial use where, for example, the ad is used to sell campaign paraphernalia like t-shirts or bumper stickers.
Step 2: Cease and desist letter (with public statement)
If the use goes past the legal limit, writing a cease and desist letter may be the appropriate next step. The USOC teaches that a well-written letter is sometimes all that is needed to convince a campaign to stop. Another option is a public statement clarifying that the company did not approve the use. Rage Against the Machine tried this tactic against Rush Limbaugh by protesting his use of the group’s songs on-air in a tweet. The downside is that letters can be ignored and statements condemning use of company content can have the paradoxical effect of drawing attention to the ad and encouraging other campaigns to seek free publicity with future ads.
Step 3: Suit and/or compromise
Filing a lawsuit can re-balance these skewed incentives. Campaigns in the middle of an election are likely to take legal claims seriously if they have to spend time and money to defend against them. Filing suit also shows other potential infringers that your company is serious.
But even if a campaign tells a content-owner to pound sand, courts are increasingly less sympathetic to political figures who use content without permission. If Jackson Browne and David Byrne can win decisions against presidential candidates and sitting governors, your company content should be protected, too.