Note: This blog post was updated on 9/14/2020 to include more information on the option for exclusion found in the ASCAP and BMI public performance licenses for political campaigns.
Election Day may still be over a year away but the 2016 Presidential campaign is already underway. As a battleground state, Ohio will experience a lot of political activity over the next 14 months. Among the anticipated barrage of political ads, full calendar of rallies, and around-the-clock media coverage of campaign activity, we will see our friend: copyright. Copyright protects a wide variety of works—speeches, websites, marketing materials, etc.—so long as the work is original and fixed in a tangible format. This blog will highlight some of the many areas you will see copyright pop up during the campaign season.
Original political speeches written by candidates (or speechwriters) receive copyright protection, meaning the author of the speech may exercise control over the reproduction, adaptation, distribution, and performance or display of the speech. Two categories of works are not covered by copyright, however: works that fail to meet the fixation requirement and works created by federal employees within the scope of their employment. This means that speeches made at town hall meetings or political rallies may not be protected by copyright, unless those speeches were recorded or transcribed. It also means that works created by incumbent presidents or U.S. Senators or Representatives, if made within the scope of their employment, lack copyright protection and are free to use. For example, a speech made and recorded by Bernie Sanders within his role as Senator or a report written by Hillary Clinton as U.S. Secretary of State may be used without permission. A work created by a non-federal employee (e.g., Martin Luther King Jr.’s famous “I Had a Dream” speech), however, may still be protected by copyright.
When speeches are televised, the broadcasting entity televising the speech (e.g., CBS, Fox News, C-SPAN, or CNN) may hold a separate copyright in the broadcast recording. This is true even if the speech itself is made by a federal employee within the scope of their employment or is otherwise in the public domain.
Campaign songs: Candidates often use popular songs during campaigns. But for as long as candidates have been using popular songs to market their campaign and engage supporters, musicians have been vexed at their songs being used in a political context, often by a candidate whose platform the musician does not support. The 2012 Presidential campaign saw its fair share of complaints; Tom Petty, Survivor, Twisted Sister, Katrina and the Waves, and K’Naan all publicly voiced their objection to the use of their music by presidential candidates. Donald Trump’s recent use of Neil Young’s “Rockin’ in the Free World” and R.E.M.’s “It’s the End of the World as We Know It (And I Feel Fine) at political events has received similar negative reactions.
Use of these musical compositions at public events invokes the copyright owner’s exclusive right of public performance. In the United States, four major performing rights organizations handle the licensing of many musical compositions: ASCAP, BMI, SESAC, and GMR. While venues may have license agreements in place with these organizations to permit the public performance of a song, the license agreements for these venues may exclude music during conventions or campaign events. ASCAP, for example, provides that “as a general rule the licenses for convention centers, arenas and hotels exclude music use during conventions, expositions and campaign events.”
This leaves the candidate (or campaign) on the hook for securing the license themselves. And in some cases, public performance licenses for political organizations and campaigns may be further limited. BMI’s Music License for Political Entities or Organizations, for example, grants a license to political entities or organizations to publicly perform musical compositions in the BMI repertoire, but allows a song to be excluded from the license if a notice of objection is given by a BMI songwriter.  ASCAP provides a similar option for exclusion in their Political Campaign license agreement. 
Even when a public performance license has been secured, candidates may refrain from using a song in order to comply with the wishes of the artist and avoid the negative publicity that continued use will bring. Causes of action beyond copyright, such as right of publicity and false endorsement, may also be brought by the artist.
What if the candidate wants to use the song in a campaign commercial or video on their campaign website? Each use will present new license considerations and requirements.
Political advertisements: Many political advertisements, including videos posted on campaign websites or hosted through a public platform such as YouTube, incorporate copyrighted audio or video clips. Typically these media clips are used to capture comments made by a political opponent, but may also include clips of the candidate him or herself.
Copyright does not protect facts. An opponent’s stated political position or voting record, for example, are facts that could be used freely by candidates in political advertisements. Candidates may also use any work created by a federal employee within the scope of their employment. If a candidate wishes to use third party copyrighted works without the permission of the copyright owner (and outside of the exceptions mentioned), however, they must rely on a fair use defense for the inclusion of these clips. This is true even if the content has already been made available to the public, e.g., posted on an opponent’s campaign website or broadcast on television. Works that have been made available to the public remain protected by copyright—publicly available is not the same as public domain.
Many online services, such as YouTube, will remove copyrighted content automatically, requiring candidates to articulate their fair use defense before the video may be reinstated. Whether a use will be found to be fair, however, will ultimately be decided by the court. In April, Rand Paul’s campaign experienced the effects of YouTube’s automated system. Rand Paul’s campaign announcement video was removed from YouTube after YouTube’s Content ID system flagged John Rich’s “Shuttin Down Detroit.” The song was used as entrance and exit music for Senator Paul during the live event but was not previously cleared for inclusion in the online video.
Media broadcasters are both users and creators of copyrighted content. News organizations routinely use copyrighted images, videos, or audio clips as part of their news coverage. Media could include photographs taken at public events, clips of recorded speeches, or transcriptions of written documents. Organizations may seek a license to use this content or may instead rely on fair use (criticism, commentary, and news reporting are all illustrative examples of fair use provided in Section 107 of the Copyright Act).
Copyright does not protect the news itself—it does not protect facts—but copyright does protect the creative expression of those facts. This means that media broadcasters own a separate copyright in their original works and may restrict use of those works by candidates. In 2007, for example, Fox News Channel sent a cease-and-desist letter to John McCain for his use of a debate clip in a political commercial. The clip featured footage of John McCain speaking at a Fox News sponsored Republican debate. The following year, Obama received a cease-and-desist letter from NBC for the use of several clips featuring NBC News Anchors Tom Brokaw and Keith Olbermann.
A recent case to deal with the use of broadcast content is Fox News Network, LLC v. TVEyes, Inc. TVEyes, a media-monitoring service, records content broadcast by over 1,400 television and radio stations. Subscribers used TVEyes to monitor the use of a particular term and track coverage of events, sorting through all recorded content in the database, obtaining transcripts and clips from the program in which the term was used, and archiving clips on the TVEyes servers. While the district court held this archiving function to be a fair use, the Second Circuit reversed, finding the service did not constitute a fair use.
Open dialogue is an important part of a healthy democracy. Like candidates, citizens may rely on the use of copyrighted content to engage in this dialogue. Individuals may look to include images, audio, video, or textual media in their own blog posts, videos, podcasts, or visual works.
In addition to the use of non-copyrightable content (facts and works created by federal employees, for example), citizens may look to establish a fair use defense when providing commentary or criticism to copyrighted works. A recent case, City of Inglewood v. Teixeira, provides an example. Teixeira, from Inglewood, California, posted videos on YouTube expressing criticism of the City Council and Mayor James Butts. The videos contained clips from City Council meetings. While the court determined that the city, as a California public entity, could not claim copyright protection for the works it has created, the court also determined Teixeira’s own use of the videos to be fair use. Teixeira used brief portions of the video to provide criticism of political activities, a use the court held to be highly transformative.
Ultimately, however, an individual must seek permission from the copyright owner to use a copyrighted work if their use does not fall within a statutory exception.
In conclusion, this blog has highlighted some of the many ways copyright may arise during campaign season. New media and new technologies provide candidates and citizens with new means and platforms for communication. At the same time, they present some additional considerations for the use of copyrighted materials. Before using a copyrighted work, individuals should consider how their use of the work may encroach on the exclusive rights of others and how copyright law, particularly the statutory exception of fair use, may be relied on as an important safety valve for free speech and political discourse.
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
 Hickey, Walt. “The Long History of Musicians Telling Republicans to Stop Playing Their Music.” FiveThirtyEight. 17 June 2015. http://fivethirtyeight.com/datalab/the-long-history-of-musicians-telling-republicans-to-stop-playing-their-music/.
 Chappell, Bill. “Neil Young Is Displeased That Donald Trump Was “Rockin’ In The Free World.” NPR. June 17, 2015. http://www.npr.org/sections/thetwo-way/2015/06/17/415158962/neil-young-is-displeased-that-donald-trump-was-rockin-in-the-free-world; Gajewski, Ryan. “R.E.M. Slams Donald Trump for Using Their Song in ‘Moronic Charade of a Campaign’.” The Hollywood Reporter. Sept. 9, 2015. http://www.hollywoodreporter.com/news/rem-slams-donald-trump-using-821609.
 “Using Music in Political Campaigns: What You Should Know.” ASCAP. http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf.
 A copy of BMI’s 2019 Music License for Political Entities or Organizations is available at https://deadline.com/wp-content/uploads/2020/06/political-entities_pol1.2019.pdf.
Robb, David. “BMI Warns Donald Trump Campaign to Stop Playing Rolling Stones’ ‘You Can’t Always Get What You Want’ At Rallies – Update.” Deadline. June 27, 2020. https://deadline.com/2020/06/donald-trump-rolling-stones-bmi-warning-you-cant-always-get-what-you-want-1202971156/
 Except for the narrow rights reserved for artists of certain works of visual art (see the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A), U.S. law does not recognize moral rights of attribution and integrity for copyright owners.
 YouTube’s Content ID system scans uploaded content to compare its database of copyright owner uploaded files. If a match occurs, the copyright owner may decide to block the video, mute the audio, monetize the video, or track viewership statistics. “How Content ID works,” YouTube. 2015. https://support.google.com/youtube/answer/2797370?hl=en.
 Individuals may make an argument for fair use of copyrighted content by claiming the use is necessary for the purpose of commentary or criticism and that use of the work is being made in the context of news reporting
 Fox News Network, LLC v. TVEyes, Inc., 13 Civ. 5315 (S.D.N.Y. 2015). TVEyes subscribers include the Department of Defense, the Associated Press, the White House, the U.S. Army and Marines, and members of the U.S. Congress.
 Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018)