Copyright on the Campaign Trail
At this point in the election cycle, the discussion about who will be elected as our next president dominates the 24-hour news cycle, water cooler conversations, and our social media feeds. As political campaigns create videos, news clips, advertisements, and other content to inform and influence the outcome of the election, they are coming into contact with an important part of our nation’s copyright law: fair use.
First amendment protections are embodied in fair use, which allows everyone to use existing scientific and cultural material without permission, under certain circumstances. To determine if a particular use is “fair," four factors are applied: 1) the purpose and character of use; 2) the nature of the work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use on the market for the original.
Campaigns at all levels — from the presidential race to state and local races — depend on this important legal doctrine to perform their daily activities, including everything from posting on Facebook to livestreaming a town hall to criticizing opponents. Fair use comes into play when producing TV, digital, print, and radio ads. A campaign might also produce an attack ad to highlight the opponent flip-flopping on tax increases during a TV interview. In that case, the interview is copyrighted, but fair use allows a short clip of the full interview to be used legally.
Another example is livestreaming. Livestreaming a candidate’s speech on Facebook Live, for instance, is permissible under fair use. Without it, the livestream would be an unlicensed use of the written speech, which is a protected work. Even popular “Saturday Night Live” skits spoofing campaign ads rely on fair use protections.
The infographic below helps break down the concept of fair use by illustrating how much political campaigns rely on it. Not only campaigns: When voters post and share videos, excerpts from news stories, SNL clips, as a way to engage in discussions about candidates and the election, they too benefit from fair use protections.
Josh Lamel is a copyright lawyer and Executive Director of the Re:Create Coalition.