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Copyrights, Fair Use and Elections

The mid-terms are coming up, so you know there will be stories of politicians getting into clashes with artists over the use of songs and other content in ads and at rallies.  In Texas, for better or worse, the real competition is often in the Republican primary and several run-offs have already brought up some copyright issues.

But it’s a fair use!

Many ads use snippets from copyrighted TV news stories or headlines from local papers often citing fair use.   Fair use is an affirmative defense to a copyright violation meaning, it is the campaign’s burden to prove the use was fair.   Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

A Texas Showdown Example

Dan Branch is a candidate in a run-off for Texas Attorney General.  NBC-owned Dallas station KXAS is arguing the Branch campaign used too much footage from its copyrighted newscast in this letter.

Specifically, NBC says the ad features “extensive use” of the story and features the voice and likeness of their anchor.  All but two seconds of music at the beginning is the TV news story.  NBC also says the use of the footage makes it appear the anchor and the station support the candidate and creates questions of journalistic integrity.

You can see the ad here for yourself.

NBC has demanded that the campaign cease further dissemination of the ad.  As of today, the video was still up under TexansforDanBranch on YouTube.

The run-off for the Republican primary in the race for Lt. Governor has gotten more attention including this ad:

Parody is also a defense to a copyright claim.  Yes, even bad parodies can be protected. Just think what happens when the ads start focusing on the people in the other party.

Related:

The DMCA and campaigns