Ted Cruz’s Presidential Campaign Apparently Committed Copyright Infringement. Oops.

July 13, 2016 · by · in Copyright, Licensing/Contracts, Marketing

I know it may be my own idiosyncratic and romanticized view of governance, but I hold politicians to a higher standard when it comes to knowing, and complying with, the law. After all, if the people in charge of making our laws can’t respect them, why should anyone else? As a result, I’m always fascinated when politicians find themselves as litigants; and I find it ironic (not in a good or funny way) when their arguments fail in court.

Apropos to this blog, we’re seeing politicians and their campaigns regularly run into IP issues. Most frequently, musicians object to their songs being associated with a particular candidate–although if the politician has the proper site licenses, the musicians only have moral, not legal, grounds to object.

In contrast, Senator Ted Cruz’s presidential campaign allegedly hit the copyright infringement bullseye. (All of the following facts are allegations from the complaint, but the defendants’ motion to dismiss doesn’t challenge any of them). The Cruz campaign’s ad agency, Madison McQueen, downloaded two songs from Audiosocket, which I would categorize as a stock music agency. The songs are “Lens” by Sarah Schachner and “Fear of Complacency” by Brad Couture. In each case, the ad agency agreed to Audiosocket’s standard Small Business License Agreement, which prohibited any use “for political purposes” and included a $25k liquidated damages clause. Audiosocket attached unique IDs to its downloads that fingers the ad agency as the downloader of these songs.

Despite the license restrictions, the campaign used both songs in promotional material. Lens was used in the “Victories” video (apparently offline), viewed 78,000 times on YouTube. After the campaign was told that its use was unauthorized, the campaign nevertheless broadcast the video 86 times on Fox Business News (if criminal copyright infringement were being prosecuted, which it won’t be because the DOJ would never go after a sitting Senator for such things, would this fact provide the necessary willfulness?). Fear of Complacency was used in the “Best to Come” video, viewed 12,000 times on YouTube.

Oops. Normally, to avoid bad press, a high-profile political candidate would plead mea culpa and write a settlement check to make the issue go away quietly. For some reason, that didn’t happen here. Instead, Audiosocket sued the ad agency for contract breach and the musicians sued the ad agency and campaign for copyright infringement. The defendants moved to dismiss the complaint, but all of the defense arguments are rejected:

* Copyright ownership. The musicians applied for but have not received copyright registrations, but the court says the complaint nevertheless sufficiently alleges their copyright ownership. [Note: courts disagree about whether a registration is required for standing to enforce a copyright, but the Ninth Circuit says a completed and filed application is enough. See Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612 (9th Cir. 2010). The defendants didn’t insist otherwise in their papers. FWIW, I still think 17 USC 411(a) says, and should be strictly interpreted to require, a completed copyright registration for standing to enforce it]. [Note 2: it makes no sense to me why any musician would license music through a stock music service like Audiosocket and NOT register the copyright in time to qualify for statutory damages and attorneys’ fees.]
* Liquidated damages. The parties spar about how many $25k “breaches” occur. The court says it doesn’t have to resolve the value of the liquidated damages because the complaint properly alleges that Audiosocket should be entitled to at least two (one for each song).
* Copyright preemption. Breach of license claims often survive copyright preemption, so the court allows Audiosocket to proceed on its contract breach claim in parallel with the musicians’ copyright claims.
* Injunctive relief. The campaign argued that injunctive relief is unnecessary because Cruz threw in the towel on his presidential campaign. The court says the “Defendants are responsible for the continued use of the musical compositions in ads that remain accessible to the public.”

Now that the plaintiffs survived the motion to dismiss, I’d expect the parties to revisit a settlement. The sticking point may be computing damages, especially the liquidated damages where the parties may disagree about how many times the license was breached. If Audiosocket accepts $25k per song, it should take $50k or less to buy them out–easily doable (especially if he still has $9M cash on hand). Audiosocket says it’s not claiming each of the 90k+ streams count as individual breaches (which would lead to over $2B of liquidated damages), but I’m not sure what their compromise position will be, so it’s hard to guess how far apart they really are.

To me, the most interesting unresolved question is how this lawsuit and failed motion to dismiss will change any of Sen. Cruz’s positions about copyright law. I’m not familiar with his IP platform, but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans who find themselves unwittingly staring down the barrel of a copyright infringement shotgun. Unfortunately, if past politicians’ response to being accused of IP infringement is any guide, the chances of Sen. Cruz becoming a champion of user rights are remote.

Case citation: Leopona, Inc. v. Cruz for President, 2016 WL 3670596 (W.D. Wash. July 11, 2016). The complaint, motion to dismiss, MTD response and MTD reply.

Some Related Posts:

* Fake Political Attack Video Doesn’t Violate Lanham Act–Ron Paul v. Does
* Political Campaigns and Copyright Infringement

Also:

* City Can’t Use Copyright To Censor Critical Videos–Inglewood v. Teixeira
* County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment
* The First Amendment Protects Facebook “Likes” – Bland v. Roberts
* Is the Florida Attorney General a Spammer?

Political note: I have no views about Sen. Cruz’s failed presidential campaign, and I have not decided which presidential candidate will get my vote in November. I have, however, tweeted occasionally about Donald Trump, including: