Political Campaigns and Copyright Infringement

By Eric Goldman

I might be wrong, but my unscientific impression is that political campaigns are encountering copyright issues more frequently than in the old days. Initially, I had hoped to catalog all of the recent incidents, but I realized that it would take me too long to recap them all. A sampling of political candidates who recently experienced a copyright imbroglio: Sharron Angle (sued by Righthaven over a Las Vegas Review-Journal article), Robin Carnahan (over Fox News footage), Charlie Crist (over the Talking Heads song Road to Nowhere), Chuck DeVore (over Don Henley’s songs), Russ Feingold (over NFL footage), Rand Paul (over Rush songs) and trailblazer John McCain (too many incidents to recount—good thing for him we don’t have a mandatory three strikes rule yet). The CDT recently released a report on takedowns in political campaigns providing more examples.

If my impression about the trend is right, a couple of possible implications:

1) Candidates may be using copyright as another tool to harass and thwart their opponents. It’s like a form of lawfare. Stirring up a copyright infringement claim against your opponent can quickly jumpstart negative publicity against them, plus it’s a good way to drain your opponent’s coffers.

2) In situations where copyright isn’t being used as lawfare, I find it deeply ironic when our actual/wannabe lawmakers run afoul of someone else’s copyright. If our lawmakers–the people we entrust to write our laws–can’t navigate making secondary uses of other people’s copyrights, how can they expect their constituents to figure it out? At minimum, candidates with firsthand experience as alleged infringers should prompt them to be more assertive about standing up for secondary users’ rights. After all, they’ve been there!