Five tips for the unwary
Many political campaigns and PACs fall into easily avoidable traps when it comes to copyright protection. Infringement can result in significant liability: The copyright statute provides that willful infringers may be liable for up to $150,000 in statutory damages per work infringed with no proof of actual damages required. Even where statutory damages are not available, the law provides that infringers must pay for actual damage caused to the infringer.
Loss of that kind of money can seriously damage a campaign, and the reputational fallout and distraction of defending against a claim may be even greater. The very best advice is not how to win cases against copyright owners, but how to avoid an infringement in the first place. So, here are five traps to avoid:1. Play that funky music . . . but not without a license
Campaign songs are almost as old as America itself. Andrew Jackson campaigned to the tune of “Hunters of Kentucky”; Abraham Lincoln used “The Battle Cry of Freedom”; and Franklin D. Roosevelt campaigned to the tune of “Happy Days are Here Again.” The past few election cycles, however, have witnessed an uptick in complaints by musicians against the use of their songs in campaigns. Tom Petty objected to Minnesota Republican Michele Bachmann’s use of “American Girl” on the campaign trail. And back in 2008, John McCain’s use of “Running on Empty” landed his campaign in hot water with Jackson Browne.
Before you decide to just blast that song at your campaign rally, understand that recorded music embodies at least two separate works of authorship, each protected by separate copyrights: the musical composition and any accompanying lyrics (termed the “musical work”) and a particular recorded rendition of that music (termed the “sound recording”).
This means that if you play recorded music in an arena, restaurant, parking lot, in a commercial or over a digital medium such as the Internet, you likely will have to pay for at least one license (for the musical work) and possibly two (adding a license for the sound recording and ephemeral rights in certain cases). One thing to check: a particular location may have licenses in place that could cover your usage.
Finally, if you are incorporating music into an audiovisual work, such as a television commercial, then you also may need to secure what’s called a “synchronization” or “sync” license for use of the musical work. If you’re using prerecorded music, the campaign may also need a “master use” license for use of the sound recording.2. Materials found on the Internet generally are not free to take
Copyright protection arises automatically when an original work is fixed in a tangible medium of expression from which it can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. Materials such as photos, videos, music, illustrations and logos that are found on the Internet (or elsewhere) are not necessarily in the public domain. In fact, there is a good chance that you need to obtain an assignment or a license from the copyright owner in order to use them. In some instances, the terms under which material may be used can be found on the website itself.
Even though materials that are produced by the U.S. government are in the public domain, not everything on a government website is actually public domain material since the government can acquire copyright rights from third parties. Doing your homework on the materials you want to use is imperative.