Impolitic politics? Campaigns and IP rights
BY PEGGY MILLIKIN Business Viewspoint
Thursday, May 10, 2012
5/10/12 at 4:38 AM
Much is at stake this election year, with political candidates and intellectual property (IP) rights holders wielding IP offensively and defensively.
The intersection of First Amendment free speech rights and copyright protection is reforged every campaign season, and this year is no exception.
It began with Ronald Reagan adopting Bruce Springsteen's "Born in the USA" as part of his campaign message.
In 2008 came the heartwarming receptions that crowds gave Barack Obama when he graced the stage to the beat of "Soul Man," while the McCain-Palin campaign played "Barracuda" as Sarah waved from the stage.
More recently, a survivor of the 1980's rock band Survivor sued Newt Gingrich for playing "Eye of the Tiger" at political rallies.
Music and politics go together, but it doesn't stop with musical repertoires.
Harry Reid posted a full copy of Sharron Angle's website, begetting infringement warnings from Angle. Completing the circle, a Las Vegas newspaper sued Angle for posting newspaper articles critical of Reid.
In one of Mitt Romney's attack ads against Gingrich, he copied footage of Tom Brokaw's reporting of the 1990's congressional ethics investigation, causing NBC to threaten suit for false endorsement.
Ron Paul sued his own supporter for posting a picture of John Huntsman, resplendent in a Mao suit with a communist red star on the cap, bearing the title "Vote Ron Paul."
Many candidates purchase public performance licenses, giving them rights to play licensed music during political appearances. Typically, organizations such as BMI or ASCAP grant public performance licenses without consulting the "artist." Whether or not the artist appreciates the associated political cause, a candidate with a public performance license has the right to perform the licensed music.
Even without a license, one can argue that a license isn't required for certain uses associated with political campaigns under the "fair use doctrine," which permits limited use of copyrighted works for criticism, political commentary, news reporting, teaching, scholarship and research. Other limitations, including the amount of the work used and the effect on the market for or value of the work, also determine whether a use is "fair."
On the holy, high altar of free speech, political speech is the most protected and traditionally trumps copyrights in the First Amendment context. However, some courts draw distinctions between political speech that is satire (commenting on a political issue) and speech that is parody (commenting on the work itself). At least one ill-advised court held that satirical political speech is less protected and did not trump copyrights.
On a cautionary note, readers must avail themselves of the fair use doctrine judiciously since its application is fact-intensive and unpredictable. On another cautionary note, I have two pieces of advice for political candidates: (1) Hire an IP lawyer; and (2) In the words of the late Sen. Robert Byrd, don't run a campaign that would embarrass your mother.
Margaret Millikin is a director and co-chair of the Intellectual Property and Technology Group at Crowe & Dunlevy law firm in Tulsa. She is a registered patent attorney practicing in all phases of intellectual property law.
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