The Politics of Copyright

Dearest A,

Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.

Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.

This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?

They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.

The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.

All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.

Love,
Sammy