Is it considered fair use for a political campaign to use music or other copyrighted works?
Politicians and political campaigns, like anyone else, may use copyrighted works in a way that qualifies as fair use with or without permission from the copyright owner; however, the fact that a politician or political campaign uses a copyrighted work in a political context does not mean that the use is any more or less likely to qualify as fair use. Fair use is a fact-specific inquiry that requires a close analysis of the nature of the use at issue, not the nature of the user.
Fair use is an exception in copyright law that permits the unlicensed use of copyright-protected works under certain conditions. The statute lays out four specific factors discussed in greater detail below that courts must consider in determining fair use, and provides a non-exclusive list of examples of the types of uses that are likely to qualify, including criticism, comment, news reporting, teaching, scholarship, and research.
Factor 1 – Purpose and Character of the Use
Factor one looks at the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Recent disputes regarding use of copyrighted works by campaigns, however, tend to point to another part of the first factor inquiry: whether the work has been “transformed.” To transform a work means more than simply using an existing work in a new context. Transformation under factor one means adding something new, with a further purpose or different character. Showing a movie at a campaign rally or adding music to a video, for example, would not, alone, qualify as a transformative use of the work.
Factor 2 – The Nature of the Copyrighted Work
Factor two looks at the nature of the copyrighted work, including whether it is a factual or fictional/more creative work and whether it is published or unpublished. Factor two weighs against fair use where the work being used is creative (particularly where the work is not transformative under factor one) and/or unpublished. Recent disputes regarding use of copyrighted works by campaigns have centered on more creative types of works like music. In those scenarios, factor two is likely to weigh against a finding of fair use because the work is creative and is not considered a transformative use under factor one. However, if, for example, a political advertisement used portions of a copyright protected academic article, documentary or other work containing factual information or data, that would likely weigh toward a finding of fair use under this factor.
Factor 3 – The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
This factor looks quantitatively at the amount of the work that is used, and qualitatively at whether the portion used is the “heart” of the work. A use by a campaign that incorporates an entire song or other copyrighted work is less likely to qualify as fair use than one that uses a small portion of the song or other work. In the context of a campaign rally or advertisement, it’s likely that the most recognizable parts usually the chorus or hook of a song are used. In that case, regardless of whether the entire song is played, one could argue that the “heart” of the work was appropriated, which would weigh against a finding of fair use. To be clear, there is no “magic” number of seconds, words, lines, etc. that will automatically qualify as fair use.
Factor 4 – The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
This is arguably the most significant factor, particularly in this context. When politicians and political campaigns use music and other unlicensed works in ways that do not qualify as fair use, they are directly interfering with the creator’s revenue stream and the market for the work. Each time one of these uses occurs, the copyright owner goes unpaid for uses that they otherwise would be compensated for.
Of course, in some instances, a campaign may have a license, for example to play music at a venue, which usually makes the fair use question obsolete. However, if that license does not cover the specific song at issue, or does not extend to political uses, the use would have to qualify as fair use, or under some other exception in the law, to be permissible.
Looking at this question from the perspective of creators, whose works are often used by political campaigns without permission or consent, the concern becomes how political appropriation of their works impacts the creator’s own right to free expression. During a Congressional hearing on fair use in the context of political campaigns, award-winning Gospel singer and songwriter Yolanda Adams discussed the importance of a creator’s right not to have their speech used to push views or messages they do not support. A song or artist becoming associate with a particular politician, campaign, or political view can adversely affect the marketability and/or value of the original work.
Ultimately, fair use, in political and every other context, must be determined on a case-by-case basis. Nevertheless, political campaigns and creators both benefit when permission is sought to use a creator’s work.
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The information provided by the Copyright Alliance in this post is intended to educate you about copyright law and policy. The Copyright Alliance is not a law firm. We do not provide legal advice and this post does not create or constitute an attorney-client relationship. Please see more here.