Some embarrassing – and preventable - copyright and licensing issues sprung from the recently-ended presidential campaign. They include Hilary Clinton’s poor selection of stock footage for her red phone ad and Shepard Fairey’s battle with the Associated Press over the inspiration for Fairey’s now famous Obama posters.
The most recent rights-clearance fiasco highlighted in the media involves Senator John McCain. One of McCain’s political commercials used Jackson Browne’s song and recording, Running on Empty. No one asked for Browne’s permission; no one paid him a licensing fee.
It turns out Browne is a huge supporter of the Democratic Party and President Barack Obama and has even performed at rallies for Democratic Party candidates. Needless to say, Browne was not thrilled with the use of his song. In addition to suing McCain and the Republican National Committee for copyright infringement, Browne also sued them for violation of his right of publicity contending that the commercial falsely suggests that Browne sponsors McCain and the Republican Party.
A federal California court denied McCain’s anti-SLAPP motion to get this case dismissed so the case may be headed for a trial. If ultimately decided on the merits, the outcome will be instructive. While political speech – including presidential campaign commercials - enjoys very broad First Amendment protections, there are few authoritative guidelines on the extent to which political commercials may borrow from copyrighted works. The outcome of this case may ultimately tell us that political speakers don’t get a free pass just because a particular work “fits” their message.
In the meantime, operatives from both major parties may want to brush up on proper licensing and rights clearance procedures. Perhaps I’ll contact the Democratic and Republican National Committees about bulk purchases of my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions.