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.
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.