AuthorSmith, Cathay Y.N.

TABLE OF CONTENTS INTRODUCTION 2006 I. COPYRIGHT, POLITICAL SPEECH, AND THE FIRST AMENDMENT 2009 II. POLITICAL USES OF COPYRIGHTED WORKS 2012 A. Original Photography 2015 B. Original Music 2027 C. Original Video Recordings and Texts 2033 D. Original Commercial Expression 2036 III. POLITICAL FAIR USE 2039 A. Nature of the Copyrighted Work 2040 B. Purpose and Character of the Use 2047 C. The Amount and Substantiality of the Portion Taken 2054 D. The Effect of the Use on the Potential Market for or Value of the Copyrighted Work 2058 IV. NORMATIVE IMPLICATIONS OF POLITICAL FAIR USE 2064 A. Balancing Litigation Certainty and Incentives to Create 2064 B. Balancing Political Censorship and Authorial Dignity 2068 CONCLUSION 2073 INTRODUCTION

It seems almost monthly a politician or political campaign is accused of copyright infringement. News headlines such as "Trump's Video Taken Off Twitter After Band Nickelback Complains," (1) "Mother of 'Success Kid' Demands Steve King Stop Using His Meme," (2) and "Warner Bros. Shut Down Trump's 2020 Video for Using the 'Dark Knight Rises' Score" (3) represent just a handful of recent examples. In order to reach voters, politicians and political campaigns use pop culture or iconic works, including viral memes, iconic movie clips, or popular songs, to convey their political messages--often without authorization from the copyright owners of these works. As politics and politicians become ever more divisive, these unauthorized political uses of copyrighted works, especially uses by polarizing politicians, can be particularly objectionable to copyright owners.

In response to these unauthorized political uses of their works, copyright owners publicly condemn these uses on social media, (4) rely on the Digital Millennium Copyright Act's (DMCA) notice and takedown process to have these objectionable uses removed, (5) send cease-and-desist letters threatening politicians with infringement suits, (6) and sometimes file copyright infringement actions against politicians and political campaigns for their unauthorized political uses of copyrighted content. (7) This practice has become so pervasive, especially during election seasons, that it is not unusual for one single politician or political campaign to face multiple copyright complaints from multiple copyright owners. In a span of just one month, Tom Petty, (8) Panic! At The Disco, (9) The Rolling Stones, (10) Neil Young, (11) and Linkin Park (12) all publicly denounced and demanded that Donald Trump cease using their music to promote his 2020 reelection campaign. Additionally, during John McCain's 2008 presidential campaign against Barack Obama, at least five different artists, including Heart, John Mellencamp, Boston, Van Halen, and Jackson Browne, demanded that McCain and his campaign cease using their original copyrighted songs to promote McCain's political campaign. (13) During Sharron Angle's 2010 campaign for U.S. Senate against Harry Reid, Angle was both on the giving and receiving end of copyright infringement accusations: she accused her opponent of reproducing her old campaign webpage without her authorization; (14) Righthaven sued her for reposting two news articles on her campaign website; (10) and Hasbro accused her of copyright infringement for her use of the Monopoly game imagery to criticize Reid. (16) But are unauthorized political uses of copyrighted works infringement? Are politicians or political campaigns immune to copyright infringement claims under the First Amendment? How do courts balance copyright owners' exclusive rights under copyright law with the public's interest in free and open discussion of politicians and political candidates? This Article examines the unauthorized political uses of copyrighted works under copyright law's fair use doctrine to answer these questions and more.

A major purpose of the First Amendment is to protect citizens' right to discuss governmental affairs and candidates running for public office. (17) While political speech occupies a privileged space under the First Amendment, the Supreme Court has held that an independent First Amendment analysis is unnecessary in cases involving copyright infringement, (18) with most lower courts abiding by this guidance. (19) Even though copyright essentially functions as a state-granted monopoly suppressing others from exercising full expression, (20) courts almost uniformly recognize that the Copyright Act has built-in First Amendment safeguards, including the fair use doctrine. (21) In light of the First Amendment safeguards already embodied in the Copyright Act, the Supreme Court has declined to create a separate public figure or political speech exception to copyright. (22)

Nevertheless, through a series of case studies, this Article identifies a pattern in political fair use decisions: in disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under section 107 of the Copyright Act in order to both accommodate the import of political speech and to respect copyright owners' dignity and rights to control objectionable uses of their expressive works. Under the courts' political fair use analysis, one determination--the nature of the original copyrighted work--seems to exert an outsized influence on the determination of all four fair use factors, permitting certain unauthorized political uses of copyrighted works to appear presumptively fair. This Article examines political fair use and potential issues and concerns with political fair use by proceeding as follows: Part I provides a high-level overview of the intersection and conflict between the First Amendment, political speech, and copyright law. Part II defines "political use" and examines disputes, litigation, and motivations involving unauthorized political uses of copyrighted works. Part III analyzes litigated fair use decisions in political use cases and identifies a pattern of political fair use in which courts implicitly modify their analyses of the fair use factors in cases arising from political uses of copyrighted works. This pattern appears to allow the determination of one factor, the nature of the copyrighted work, to influence consideration of all of the fair use factors. Finally, Part IV examines the normative implications of political fair use decisions, including implications on litigation certainty and predictability, incentives to create, censorship of political expression, and authorial dignity and autonomy.


    The Supreme Court has explained that "[t]he First Amendment 'has its fullest and most urgent application to speech uttered during a campaign for political office."' (23) While the First Amendment generally provides that "Congress shall make no law... abridging the freedom of speech, or of the press," (24) it is undisputed that political speech occupies a privileged space under the First Amendment. The Court has expressed on numerous occasions that a major purpose of the First Amendment is "to protect the free discussion of governmental affairs... includ[ing] discussions of candidates." (25) In order to maintain the vitality of our democratic institutions, "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution," and these debates must be "uninhibited, robust, and wide-open." (26) Therefore, the Court has ordered that "political speech must prevail against laws that would suppress it, whether by design or inadvertence." (27)

    Copyright law appears in conflict with the First Amendment. The Copyright Act essentially confers upon copyright owners "a governmentally granted means to prevent others from exercising full expression." (28) When it comes to copyright disputes involving the potential to suppress political expression, the court in Keep Thomson Governor Committee v. Citizens for Gallen Committee warned:

    [T]he Court must be aware that it operates in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.... Although First Amendment protection is not confined to the exposition of ideas, there is practically universal agreement that the major purpose of that Amendment was to protect the free discussion of governmental affairs, including discussions of candidates.... In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, because the identities of those who are elected will inevitably shape the course that we follow as a nation. (29) At the same time, courts have explained that the Copyright Act and the First Amendment were, in fact, "drafted to work together" to encourage creation and dissemination of speech and expression. (30) Courts have explained that "the laws of the Copyright Act already embrace First Amendment concerns," (31) and one court even made the (later rejected) claim that therefore "copyrights are categorically immune from challenges under the First Amendment." (32) Even in copyright disputes involving the potential suppression of works of public interest, courts find that a separate First Amendment analysis is unnecessary because the Copyright Act already embodies First Amendment safeguards. (33) These safeguards include copyright's distinction between copyrightable expression and uncopyrightable facts and ideas and--most importantly for this Article--copyright law's fair use doctrine. (34) This means that, even in infringement actions involving political speech or public figures, courts have refused to expand the doctrine of fair use to create a political use or public figure exception in copyright law. (35) In...

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