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  • Gingrich and Romney’s Copyright Troubles

    I have previously blogged about How Copyright Blunders Push Political Campaigns Off-Course. The election cycle is providing new – but not necessarily fresh – examples of those blunders.

    Newt Gingrich’s Use of “Eye of the Tiger”

    Frank Sullivan, a founding member of the Survivor, has sued Gingrich for use of one of the musical group’s signature songs, “Eye of the Tiger”. Sullivan complains that “Gingrich took the stage at political conferences and similar public events as a recording of ‘Eye of the Tiger’ was played over the public address system”. Sullivan’s complaint is legally weak. As long as the campaign or the venue for the rallies had a public performance license, performing "Eye of the Tiger" at a public rally is just fine. In the United States, ASCAP, BMI, and SESAC issue most public performance licenses in the form of blanket l icenses covering all the songs in the organization’s catalog.

    Sullivan also complains that a political group working with Gingrich posted online video recordings of the rallies with “Eye of the Tiger” playing in the background. The rules for using music at a political rally do differ from the rules for using music in a political ad or video. While one does need a synchronization license to use a song in a video, the circumstances described in Sullivan’s complaint sound more like the song was captured on video as background during the recording of a newsworthy event. Whether licenses are required for such incidental use of music is a question that often tortures documentary filmmakers. Many media industry professionals argue that such an incidental use is a fair use. However, the few court opinions indirectly addressing the question do not provide a clear, universal answer.

    Mitt Romney’s Ad Featuring Tom Brokaw

    A recent anti-Gingrich 30-second political ad posted by Mitt Romney consists only of a 1997 clip from NBC’s “Nightly News”. In the clip, Tom Brokaw reports that Congressional members have found Gingrich guilty of ethics violations. NBC has already sent a cease and desist letter asking that Romney stop using the ad. Romney’s campaign characterizes the use as a fair use. Even though Romney uses the clip within the context of political commentary, fair use may be difficult to show since the ad includes no added voice-over or other original material. I’m surprised that Romney’s campaign learned no lessons from Robin Carnahan, the 2010 unsuccessful Missouri candidate for the U.S. Senate. Fox News sued Carnahan after she released a political ad containing 30 seconds of Fox News Network footage.

  • How Copyright Blunders Push Political Campaigns Off-Course

    Missteps in copyright and intellectual property law can send a political campaign off-track and off-message. Even when a copyright blunder doesn’t lead to formal legal action, it distracts from the candidate’s core political message. Here are a few intellectual property landmines on which an unwary political campaign might stumble.

    Selecting the Wrong Music.

    The right music can energize rally attendees and add oomph to a candidate’s televised message. In contrast, the wrong music selection can generate cease nd desist letters, lawsuits, and negative public comments from peeved musicians who don’t agree with the campaign’s views and don’t want their music associated with it. Recent political campaign music skirmishes have involved John McCain against Jackson Browne, Sarah Palin against Heart, and U.S. Senate candidate Chuck DeVore against Don Henley. Campaigns should also note that selecting music for a political ad demands more care than the selection of music for a political rally.

    Failing to Acquire Domain Names and Social Media User Names.

    Today’s political campaigns increasingly rely on internet communications and need to acquire appropriate domain names and social media account names. In general, domain name registrars and social media networks issue names on a first-come, first-served basis without doing any conflict check. That’s bad news for campaigns slow to secure domain names and social media account names featuring the candidate’s personal name – especially if an opponent gets them instead. While a candidate can sometimes re-claim a domain name that incorporates his personal name, under certain circumstances, it is completely legal for a campaign to use a domain name that features the personal name of an opposing candidate.

    Stepping Outside Copyright Fair Use Boundaries.

    Using someone else’s copyrighted work is infringement unless fair use or another exception to copyright protection applies. Unfortunately, identifying the line where fair use ends and copyright infringement begins is not always easy. Past political seasons have generated copyright infringement allegations against U.S. Senate candidate Sharron Angle, Senator Harry Reid, and U.S. Senate candidate Robin Carnahan.

    Not Vetting Stock Footage.

    Stock footage is pre-existing footage program producers incorporate into their productions. While there is nothing inherently wrong with using properly licensed stock footage, there can be a downside. Hillary Clinton plunged into that downside during her 2008 Presidential bid when her campaign used eight-year old stock footage in the red phone ad. The footage featured Casey Knowles as a child. The problem was the grown-up Knowles had become a staunch Barack Obama supporter and was not shy about publicly identifying herself as such. That story angle dominated coverage of Clinton’s campaign for several days.

  • Gaylord v. US, Part One, Korean War Veterans Memorial on Stamp Is Not Fair Use

    On February 25, 2010, the United States Court of Appeals for the Federal Circuit, made a decision in the case of Gaylord v. United States. While many reports of the opinion focus on the copyright fair use determination, the court opinion also provides instructive analysis on what it takes to qualify as a co-owner of a copyright and potential pitfalls in the copyright provisions of government contracts.

    This is the first of a three-part blog posting. In this first part, I discuss the Gaylord fair use analysis. In Parts Two and Three, I’ll discuss the copyright co-ownership and government contracting portions of Gaylord v. United States.

    Background of the Dispute

    In 1986, Congress enacted legislation to build the Korean War Veterans Memorial in Washington, D.C. Cooper-Lecky Architects, P.C. (Cooper-Lecky) was selected as the primary contractor for the Memorial. Cooper-Lecky selected Frank Gaylord, a nationally recognized sculptor, as the sculptor for the Memorial. Gaylord sculpted nineteen stainless steel statues representing a platoon of nineteen foot soldiers in formation referred to as The Column.

    After completion of the Memorial, Photographer John Alli took several photographs of the Memorial including a photograph taken in January 1996 after a snowstorm that left the statues in the column covered with snow. In 2002, the U.S. Postal Service issued the stamp, titled “Korean War Veterans Memorial.” which features one of Mr. Alli’s photo and depicts fourteen of Gaylord’s nineteen soldier sculptures.

    The Postal Service received over $17 million from the sale of nearly 48 million of the Korean War Veterans Memorial stamps. In addition, the Postal Service sold retail goods such as commemorative panels and framed art featuring images of the stamp. The Postal Service had the permission of Mr. Alli and Cooper-Lecky to use the image on the stamp. The Postal Service did not have the permission of Mr. Gaylord. Mr. Gaylord sued the Postal Service for copyright infringement.

    Fair Use Analysis

    One of the United States’ defenses to Mr. Gaylord’s lawsuit was fair use. The United States Court of Appeals for the Federal Circuit did not agree. Here is the court’s analysis when applying the copyright fair use four factor test:

    Factor One. What are the purpose and character of the Postal Service’s use of Gaylord’s work? The Postal Service received millions of dollars from the sale of the stamp. The court classified the use as commercial. The court did not find the use of the Column to be transformative. Factor One weighs against fair use.

    Factor Two. What is the nature of the copyrighted work? The nature of the Column is expressive and creative. Factor Two weighs against fair use.

    Factor Three. How much of the copyrighted work is used? The stamp depicted fourteen of the nineteen soldier sculptures in the Column. Factor Three weighs against fair use.

    Factor Four. Does the use harm the copyright owner’s ability to market the work? The court ruled that the stamp has not and will not adversely impact Mr. Gaylord’s efforts to market derivative works of the Column. Someone seeking to take a photograph of the Column or otherwise create a derivative work would not find the stamp to be a suitable substitute for the Column itself. Factor Four favors fair use.

  • Giving Credit for Public Domain and Fair Use Materials

    Some producers using public domain and fair use materials
    wonder what attribution they are required to give to the creators of those
    works, whether they must identify the works as being public domain or fair use,
    and what other rules they must follow when using such works. 

    If the material is in the public domain (meaning the
    copyright in the work has expired or never existed), copyright law places no
    obligation on you to refer to the work as public domain, to cite the source,
    or to provide any other type of credit.  Likewise,
    if your use of the material qualifies as a fair use (here I’m referring to fair
    use as defined under Section 107 of the Copyright Act), copyright law places no
    obligation on you to indicate that you’re relying on fair use, to cite the
    source, or to provide any other type of credit.

    Nevertheless, it is “courteous” to cite the source
    and/or provide a credit.  Also, depending
    on your professional field, your colleagues may take a dim view of your quoting
    sources and using materials without providing an appropriate credit. 

    There is
    at least one caveat to providing credit when you are relying on fair use.  Y    our claim that your use is protected by
    copyright fair use is not a guarantee that the rights
    owner will agree with you.  There is no
    bright line in determining what qualifies as a fair use and what doesn’t.  That’s why the decision of whether to use a
    particular copyrighted work without permission often revolves around a risk
    assessment    .  One of the risk factors to consider is the
    likelihood of the use coming to the attention of the rights owner.  Putting in a credit increases the likelihood
    that the rights owner will become aware of your use.

     

    Because fair use is
    uncertain, it’s typically my preference to have permission rather than rely on
    fair use.  If you have permission from
    the rights owner, you have a license from the rights owner to use the work in a
    particular manner.  If the rights owner
    dictates a specific form of credit, I would characterize that specification as
    a term of the license agreement and I would do my best to comply.  

  • Imitating the Work of Admired Visual Artists – Flattery or Copyright Infringement?


    According to the adage, imitation is the sincerest form of flattery. However, to what extent can one visual artist imitate the work of another visual artist? This topic came up recently on the Digital Painting Forum.   


    Anyone may duplicate the ideas or concepts reflected in your artwork.  For example, if you paint a horse, copyright law does not prevent anyone else from painting a horse  – even if it is the exact same horse. What another may not do is duplicate the expressive elements used by you in your artwork. Expressive elements in visual artwork include the selection of lighting, shading, camera angle (for photographs), background and perspective.


    Copyright law also often allows you to use a copyrighted work if you transform the work in some manner. Your use of a copyrighted work is transformative if your use is creatively different from the way in which the
    copyright owner used it. As a general rule, the transformed work can not serve as a substitute for the original work.   Transformation is a key element in determining whether or not a particular use of a copyrighted work qualifies as a fair use.


    Learning from the Experiences of Jeffrey Koons


    Visual artist Jeffrey Koons seems to be a lightening rod for copyright infringement lawsuits. Looking at two of his experiences might help illustrate how to draw the line between copyright infringement  and transformative use.

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  • Copyright Seminar in Arlington, Virginia on Saturday, January 12

    On
    Saturday, January 12, 2008,  at 2:00 p.m., I’ll offer a presentation on
    “Copyrights and Licensing for Creative People” at the Arlington County Central
    Library.  The presentation covers copyright and licensing issues relevant
    to your books, websites, music, artwork, and video productions.  A book
    signing of The Permission Seeker’s Guide Through the Legal Jungle follows the
    presentation.  There is no admission fee.  The library is located at 1015 North Quincy Street, Arlington, Virginia, 22201.  The library offers free
    parking and the Ballston station metro stop on the Orange Line is three blocks
    away. For additional information, call the Arlington County Central Library at
    (703) 228-6321.