Political Campaigns and Copyright Make Strange Bedfellows
With November elections approaching, headlines about politicians or government officials using copyrighted works without permission are likely to resurface. Political actors have long used creative works to connect with supporters, inspire action, and reinforce campaign messages. Those uses, however, can create difficult legal and practical questions for copyright owners. The familiar example is unlicensed music played at a campaign event or rally, but political uses can involve many other works, including characters, movie clips, photographs, slogans, and video games.
Recent examples illustrate the expanding range of political uses including former Member of Congress Steve King using a meme with the “Success Kid” photograph for a political fundraising campaign; the Obama campaign using a copyright protected Sesame Street character in election ads; the Department of Homeland Security used Pokémon’s “Gotta Catch ’em All” slogan in an ICE-related video that also featured the Pokémon theme song, other audiovisual content from the Pokémon animated series, and imagery depicting Pokémon characters and trading cards; and the White House launched arcade.gov with several political games, at least some of which seemed to incorporate elements of video game companies’ intellectual property. Regardless of the party or the types of work or issue involved, such episodes renew public debate about what happens when politics and copyright intersect.
The Legal Framework
As a general rule, using a copyrighted work without the owner’s authorization or another legal basis constitutes infringement. Political campaigns and government officials receive no blanket exemption. For example, a campaign ordinarily must secure the appropriate licenses before playing a song at a rally, and a copyright owner may decline to license a work for political use.
Copyright law nevertheless includes exceptions and limitations. Most relevant here is fair use, a fact-specific doctrine that may permit an otherwise unauthorized use. Its application can turn on whether the political use serves a different purpose from the original work and whether it harms the market for, or value of, that work. This uncertainty makes enforcement less straightforward than it may first appear.
There is also a principle known as sovereign immunity, a concept with roots in English common law, under which the Crown could not be sued. Under U.S. law, it means the federal government generally cannot be sued without its consent. Under 28 U.S.C. § 1498(b), Congress has waived that immunity for copyright claims, allowing rights holders to seek compensation when the government uses a copyrighted work without permission. However, it does not generally permit a rights holder to get an injunction to stop the federal government from continuing its unauthorized use.
Enforcement in a Political Context
As noted, the identity of the alleged infringer can shape both the claim and the available remedies. A private entity using a copyrighted work during a campaign must be analyzed differently from a government entity. When a federal official acts within the scope of official duties, the copyright owner generally cannot stop the government from using the work—this is sovereign immunity. But since the United States has waived sovereign immunity for copyright infringement only for monetary claims, copyright owners may seek damages. Process-wise, a copyright owner may still send a takedown notice under Section 512 of the Digital Millennium Copyright Act to a platform distributing the unauthorized content, such as YouTube, X, or TikTok. A platform may remove the material to preserve its safe-harbor protection under Section 512.
State and federal governments also present different remedial challenges. State governments are generally difficult to sue for damages, although prospective injunctive relief may be available in some circumstances. The federal framework is largely the reverse: compensation may be available for an unauthorized governmental use, but an injunction generally is not.
And to reiterate, separate from these concepts of sovereign immunity, even when a claim is legally strong, a copyright owner must weigh the likelihood that the use qualifies as fair use. That analysis requires balancing the four statutory fair use factors in Section 107 of the Copyright Act, including the purpose and character of the political use and its effect on the market for the copyrighted work.
Practical and Strategic Considerations
Enforcement decisions in the political arena rarely turn on legal merit alone. Litigation can be expensive, slow, and distracting, potentially diverting resources from creative and marketing work. By the time a dispute is resolved, any political or reputational harm may already have affected the owner’s audience or goodwill. Copyright owners must also consider public reaction, business relationships, and the possibility of escalating a dispute with a government actor. In some cases, enforcement may amplify the challenged message or trigger policies contrary to the owner’s interests. Cost, timing, labor, public relations, and broader business strategy may therefore carry as much weight as the underlying claim.
Conclusion
Politics and copyright have long overlapped, but generative artificial intelligence, digital editing tools, and ubiquitous distribution are making political uses easier to create and harder to contain. Copyright owners face distinctive legal, practical, and reputational constraints when politicians—particularly government officials—use their works without authorization. A decision not to sue or demand removal should not be mistaken for approval or indifference. In the political context, copyright enforcement is rarely a simple matter of identifying an infringement and pursuing a remedy.
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