3. Materials that you did not create are not yours
The law vests ownership of copyrights in the creators of original works unless they are works “made for hire.” An organization generally owns the copyright for materials created by its employees within the scope of their employment. An organization does not own the copyright for materials created by independent contractors or other third parties, unless very specific conditions of the work made for hire are met.
First, the work must be “specially ordered or commissioned” by the company—it may not be a preexisting work. Second, it must be one of nine narrowly defined types of works. And third, the parties must expressly agree in writing that the work will be considered a work made for hire. If all three of these three conditions are not met, then you probably have to obtain a license to use or assignment of the materials from the copyright owner. This includes things like your website design, materials published on your website, and print, radio and television ads. Although a license may be oral or even implicit in the dealings between the parties, it is generally advisable to make it in writing.
4. There is no ‘20 percent’ or ‘30-second’ fair use rule
Fair use is a frequent question in political speech. For example, campaigns frequently seek to use clips from newscasts and other events in preparing ads. Campaign ads or materials also often seek to modify existing materials to showcase a political point. The concept of fair use, which permits the use of copyrighted works of others under certain conditions, is frequently misunderstood.
There is no bright-line rule defining how much of a work can be taken and still be fair use. The Copyright Act contains a non-exhaustive list of examples of purposes for which a particular use of a work might be considered fair and not an infringement—these include criticism, comment, news reporting, teaching, scholarship and research. A proper fair use analysis must also include a balancing of four factors:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
The distinction between fair use and infringement is not easily defined and is highly factually dependent.
5. Even if there’s no copyright violation, you may still have issues
Even if you have secured licenses or determined that a use is “fair,” copyright owners such as recording artists and news outlets have more frequently started to assert objections that the use of their personalities or works in political campaigns implies a false endorsement of the campaign under a right of publicity or federal Lanham Act theory. Any use of materials that features or can be attributed to a public individual or organization that has not approved their use must be approached with extreme caution.
The best defense against claims of infringement is to have done your homework before using materials that may be owned by someone else. The potential fallout from a complaint or a lawsuit is expensive and distracting. If you have any doubts about whether a particular use is likely to spurn an objection, consult with counsel skilled in evaluating these issues for political campaigns.
Jennifer L. Elgin is a lawyer in the Intellectual Property Practice at Wiley Rein LLP in Washington, DC. Ms. Elgin counsels clients on copyright protection and defense against copyright claims.