Are campaigns running on infringement?

As we move further into a political season, we can expect to hear a lot about copyright law. No, not that candidates will campaign for copyright reform or pepper their speeches with their positions on fair use, work for hire, or the first sale doctrine. Rather, candidates will use copyrighted materials without authorization, raising copyright infringement concerns and complaints. This is nothing new — it has happened in most political campaigns in the recent past and is already happening in 2018. Candidates use lots of different copyrighted materials — photos, print materials, videos, and music. Music seems to be the most sensitive area, particularly because so many candidates seem to pick theme songs written or performed by someone who totally disagrees with the candidate. Ideological differences between a candidate and a song’s copyright owner are substantively irrelevant under copyright law, but they affect the copyright owner's likelihood of objecting to the use.

Several TV news organizations have used the takedown procedures of the Digital Millennium Copyright Act to have political commercials using their content, even small portions of said content, removed from the web. Trevor Potter, a prominent election law expert, has been highly critical of this practice, particularly in his role as general counsel to the McCain presidential campaign.

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