the Mark Pike

I wrote this paper in December 2008. Some of the topics came up recently in a discussion at work— and the media currently appears to be discussing the issue as well ever since a rock n’ roll star wrote a cease and desist letter to a presidential candidate. I thought I’d post it publicly in case anybody else is researching these type of matters. 

MEMORANDUM

TO: Prof. Marcus
FROM: Mark Pike
SUBJECT: Copyright and the 2008 Presidential Election

This memorandum seeks to clarify potential issues in the area of copyright law and the campaign advertising industry through a brief survey of the 2008 presidential election, applicable case law, and theory.

Because of competing interests, there is a clear tension between the First Amendment and copyright law— the former seeks to preserve the rights of free speech while the latter provides a limitation.

By highlighting the struggle of applying copyright law in a modern election, this memorandum aims to help candidates to effectively deliver their message and successfully navigate the challenges of intellectual property rights in the political context.

Questions Presented:

• Have advertisements traditionally received copyright protection?
• Do political ads satisfy the creative threshold?
• Which elements of political ads are eligible to receive copyright protection?
• How does the fair use doctrine apply to political ads?

I. Advertisements with Creative Elements Enjoy Copyright Protection 

a. Historical Context of Ads With Copyright Protection

Copyright law is built with the basic goal of innovation for the public’s welfare. It is derived from the Copyright Clause of the U.S. Constitution, which authorizes Congress to “promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”¹ Although copyright law provides economic benefits, they appear to be merely ancillary while the primary goal is to encourage creativity for the sake of public welfare.²

There are a few requirements that must be satisfied to qualify for copyright protection. First, a work must be original; however, the bar that has been set for creativity is quite minimal. In fact, according to the Supreme Court, “the requisite level of creativity is extremely low; even a slight amount will suffice.”³ The other requirements included in the U.S. Copyright Act require that a work must be must be “fixed in any tangible medium of expression.”⁴ Once a work has been granted copyright protections, the holder has an “exclusive right” and can prohibit others from using the work without permission.

Before the turn of the 20^th century, courts often denied copyright protection for advertisements due to a perceived lack of artistic value and originality.⁵ In one case, Higgins v. Keuffel, the U.S. Supreme Court held that there would be no copyright protection on some types of writings, such as inkbottle labels, because they have “no possible influence upon science or useful arts.”⁶ However, subsequent rulings have undeniably established copyright protection for advertisements. The genesis of such a doctrine stems from Justice Holmes’ opinion in Bleistein, where the court recognized that advertisements contain individual copyrightable elements, namely the pictures:

A picture is nonetheless a picture, and nonetheless a subject of copyright, that it is used for an advertisement.⁷

The court extended its logic to declare that advertisements as a whole are therefore copyrightable.

However, it should be noted that the Court in Bleistein focused on the question of whether advertising furthered the goals of the Copyright Clause of the U.S. Constitution—chiefly, the progress of the Arts.⁸ Because of this focus, the Court potentially failed to adequately consider the grant of exclusive rights in advertising, and whether that also furthers the goals of the Copyright Clause of the U.S. Constitution.⁹

Some scholars argue that such an exclusive right restricts the free flow of commercial information, seemingly contrary to one aspect of the stated primary goal of copyright— to promote the public welfare.¹⁰ Moreover, in the realm of political advertising, restricting the flow of information and transparency could be detrimental to campaign messages, which highlights the conflict between the First Amendment and the Copyright Clause.

b. Political Ads are Creative

If there were any doubt that political advertisements rise to the level of creativity required to receive copyright protection, it is helpful to take a look at some of the work product that emerged from the design firms hired to work for Barack Obama and John McCain in the 2008 presidential election.

In an interview about creating Barack Obama’s now iconic “O” logo, graphic artist Sol Sender described the chance to work on campaign design as “an opportunity to do breakthrough work at the right time in what’s become a predictable graphic landscape.”¹¹ Sender had never worked on design strategy in the political context before, which he largely credits for his team’s success.¹² “The design expression was so constrained and so bland for so many years in politics”,¹³ Sender said in an interview after the election. His design team innovated by applying concepts learned in other marketing forms. For example, the “O” logo has been credited as one of the first political logos to utilize an emblem as the focus instead of the candidate’s name—¹⁴ an advance one could easily argue as “Progress in the Useful Arts”.¹⁵

And, the creative aspects of political graphic design are not just limited to the emblems in the logos, as evidenced by Sender’s elaboration on typographical elements—all conscious choices made by the campaign to express a certain message.¹⁶ The Obama campaign made heavy use of a modified Gotham typeface design scheme, which many branding experts have credited as instrumental to its success in conveying a message.¹⁷ Gotham translates to the digital medium extremely well; especially in the manner the Obama campaign implemented it, thereby allowing for wide dissemination to supporters in a reliably effective manner.¹⁸ In all of these instances, it is important to note that the campaign is controlling their image through organized distribution channels in a fixed, tangible medium.

A further exploration of political graphic design and logos reveals that John McCain utilized Optima, a sans serif typeface known by some as a “centrist font” for its serif tendencies.¹⁹ Furthermore, the McCain logo prominently featured a star, which references his service in the military and his campaign’s focus on the slogan “Country First”.

All of these characteristics of the elements of political advertising tend to indicate that the campaigns are acutely aware of the projections the voting public makes upon political propaganda. For example, bright blues and gradients with circular themes in this campaign cycle were thought to signify “Change” and “Hope”, whereas darker and bolder colors were thought to signify “Experience” and “Service.” This suggests that political campaigns face a graphic design challenge to successfully fuse their ideas with the most effective expression.

c. Idea-Expression Dichotomy

Because successful graphic designers in a political campaign are able to intertwine a candidate’s message with a visual representation, an analysis of the idea-expression dichotomy is necessary in order to distinguish which elements are protectable. Not all elements of a creative advertisement will automatically receive copyright protection. The creators of advertisements, particularly political ones, cannot get copyright protection for their ideas because copyright law does not protect basic factual information.²⁰

The first time the U.S. Supreme Court fully explained the idea-expression dichotomy was in the case of Baker v. Selden, where the idea of a bookkeeping method was not deemed protectable by copyright; however, the description of the system was granted copyright protection.²¹ The Court reasoned that the only time exclusive rights in an “useful art” can be provided is by the patent process, because the monopoly on ideas would be counter to the purposes of the Copyright Clause.²²

And, in Harper & Row Publishers, Inc. v. Nation Enters., the Court continued to flesh out the idea-expression divide, this time focusing on the conflict between the Copyright Clause and the First Amendment. In finding for the plaintiff, the Court preserved former-president Gerald Ford’s copyright protection in his memoirs, which were largely based on factual events during his presidency. “Copyright’s idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’”²³

However, the Court has also recognized that there are some ideas that can only be expressed in a limited number of ways. This is referred to as the merger doctrine, and in these cases the Court will often only recognize infringement if the advertisement is substantially similar to the copyrighted work.²⁴ Or, instead of an affirmative defense, the Court will consider the merger doctrine in determining if the original work qualified for copyright protection in the first place.

One of the factors the Court might consider in a case involving the merger doctrine is whether the idea expressed is merely scène à faire—translated from French for “scene that must be done”, or something that is a ostensibly a standard requirement for a genre.²⁵ In a recent advertising copyright case, the 9^th Circuit determined that a vodka company did not infringe upon a photographer’s previous work for the company because a photograph of a vodka bottle is scène à faire for the industry.²⁶ The defendant would have had to make an advertisement that was “virtually identical” in order to have violated the photographer’s copyright. Applying this analysis to political advertising could help a campaign determine some boundaries of what elements of their work might be protectable. 

II. Political Ads and Infringement

a. Only Creative Elements Receive Protection

As applied to the context of political advertising, the idea-expression dichotomy requires a rather complicated analysis. It is difficult to dissect and extract the core creativity contained in political advertising and neatly categorize the elements into the silos of “idea” or “expression”. In the absence of a commercial good or service at the core of their message, presidential candidates are seeking to be elected. Sometimes they do so using basic factual information—the details of their tax plans, for example. Other times they might use short phrases and words as slogans—hope, safe, change, truth, etc.

The scène à faire for the political advertising industry is not quite as difficult to define. Red, white, and blue hues with “Vote for ___” prominently displayed on a poster or bumper sticker with a candidate’s name and slogan is the stereotypical example. Furthermore, many voters can recognize a negative attack advertisement the moment they hear an ominous chord during election season, which would suggest to the Courts that such elements are “standard” in the “treatment” of campaign ads.²⁷

In Section I (b) of this memorandum, we took a brief survey of some of the design work presented by the presidential candidates from the 2008 election. A closer look reveals that some of the elements of the presidential logos are likely not protectable by copyright.

For example, the typographic elements, though conscious choices to express a message, were merely a tool used to convey information. In Eltra Corp. v. Ringer, one of the most prominent modern typography cases, the Court considered whether typography is protectable.²⁸ There, the court determined that typeface is generally “an industrial design in which the design cannot exist independently and separately as a work of art.”²⁹ Accordingly, one can assume that the type-based elements of logos will not receive copyright protection.

Nevertheless, some organizations, such as Typeright which has a mission objective to “promote typefaces as creative works and to advocate their legal protection as intellectual property”³⁰ have argued that an application of the “filter test” from Computer Associates International, Inc. v. Altai, Inc. should protect innovations in typeface.³¹ However, when making such an argument, the court will likely find that the efficiency concerns of conveying information via typeface are so restrained and that there are limited “workable options”³², and because of the merger doctrine the typeface innovation fails to overcome the second step of the Altai test regarding filtration.

Focusing solely on the typographic construction of words in political construction would be shortsighted in an analysis of political advertising. In addition, one should also look at the slogans that similarly have a large impact on the audience. Typically, these short and catchy phrases will not be granted copyright protection. In fact, the United States Copyright Office has distributed a circular clearing up any confusion on this matter with the succinctly titled “Copyright Protection Not Available for Names, Titles, or Short Phrases.”³³ In the presidential election, one could come to the conclusion that Barack Obama and John McCain would be unable able to secure copyright protection on the use of their names or even their slogans.³⁴

Finally, an analysis of the images and videos produced by the campaigns raises even more issues with respect to the idea-expression dichotomy. Although these candidates are extremely newsworthy,³⁵ the campaigns would not be seeking copyright protection on the “news” but rather on the videos and images produced by their campaigns. These videos and images have been found sufficiently original to receive copyright protection under “the prevailing view” of Judge Learned Hand:

[almost] any… photograph may claim the necessary originality to support a copyright merely by virtue of the photographers’ personal choice of subject matter, angle of photograph, lighting and determination of the precise time when the photograph is to be taken.³⁶

Because of the inherent originality afforded to the photographic process, campaigns can assert a fairly large copyright privilege on their images and videos. However, as we will analyze in Section II (c), the affirmative defense of fair use might not give the campaign the power to absolutely prevent infringement.

b. Instances of Potential Infringement in 2008 Presidential Election

During the summer of the hotly contested 2008 presidential election, the McCain campaign launched a new homepage that featured a new slogan and new graphics. To some, however, the homepage seemed quite familiar as one political analyst put it bluntly, titling his news report “McCain Rips Off Obama’s Slogan And Logo.”³⁷ McCain’s new slogan was “A Leader You Can Believe In”, which most would recognize as substantially similar to Obama’s established slogan “Change You Can Believe In.”³⁸ Furthermore, the graphics of McCain’s new homepage consisted of a red and white striped landscape and a starburst blue horizon, which was also strikingly similar to Obama’s webpage and a stark departure from McCain’s preceding web presence that featured dark black with gold stars.³⁹

Similarly, shortly following the completion of the 2008 election, Benjamin Netanyahu, a popular Israeli candidate running for prime minister launched a website that is nearly identical to Obama’s. Questioned by the New York Times about the mimicry, one of Netanyahu’s top campaign advisors simply replied, “Imitation is the greatest form of flattery.”⁴⁰ He continued:

We’re all in the same business, so we took a close look at a guy who has been the most successful and tried to learn from him. And while we will not use the word ‘change’ in the same way in our campaign, we believe Netanyahu is the real candidate of change for Israel.⁴¹

A spokesperson from the design firm in charge of Obama’s website, Blue State Digital, was not surprised, stating that the campaign’s success meant that “people are going to knock things off, both in terms of functionality and aesthetic.”⁴²

c. Fair Use as a Defense to Infringement in Politics

Copyright protection is not absolutely enforceable and “fair use” is sometimes considered an acceptable affirmative defense to limit the exclusive rights of copyright holders. As provided in 17 U.S.C. § 107, the fair use defense should be assessed by applying four guiding factors:⁴³

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This multi-factored analysis requires a fact-based inquiry, which means it is very difficult to have any certainty in the outcome of an asserted fair use defense.⁴⁴ In order to gain a fuller understanding of each of these elements in regards to political advertising, it would be helpful to consider their application in the context of an election.

i. Purpose and Character

In the world of political advertising, this particular aspect of fair use creates tension between the desire to promote innovative design and the need for comparative analysis.⁴⁵ Copyright protection has not been construed to allow a copyright owner to squelch another’s opinion of the work as that would tend to conflict with the stated goal of copyright law.⁴⁶ In commercial usage, if the purpose of an infringing use is comparative advertising, this factor will go in favor of a defendant.⁴⁷

In a case related to our political advertising focus, during the 2000 election, presidential candidate Ralph Nader was sued by MasterCard for making a parody of the “Priceless” ad campaign.⁴⁸ The court held that Nader’s ad parody was sufficiently transformative as it was “a political non-commercial purpose”.⁴⁹ It follows that in the context of a political campaign, the court views such use even more in favor of an infringer using a logo as a shorthand reference, because such a “transformative” use would advance the public exchange of new ideas.⁵⁰ However, it should be noted that Nader’s usage was different and transformative from MasterCard’s commercial, whereas a court could potentially find that a political ad that heavily mimics another political ad without new ideas might not be considered sufficiently transformative.⁵¹

One should also factor in the court’s finding in Hustler Magazine, Inc. v. Moral Majority, Inc. where Hustler magazine had made a parody advertisement of Jerry Falwell alleging the religious leader engaged in lascivious activities prior to his sermons.⁵² This advertisement was then distributed by Falwell to fundraise for his political lobbying group.⁵³ The Ninth Circuit ruled that the fair use factors favored Jerry Falwell’s organization’s use of Hustler’s copyright work, even though they distributed full exact copies.⁵⁴

It follows that the courts have been relatively liberal in allowing fair use in the borrowing of an original work in order to successfully mock it.⁵⁵ The concept of parody falls under this category of fair use analysis because it functions as a commentary on the work being mocked.⁵⁶ However, if one is using the work as a vehicle for commentary on something unrelated, the court may consider this satire and fail to approve a fair use defense.⁵⁷ Nevertheless, if the court does find a work to be a parody under the first factor, the remaining three will be unlikely to stop the court from finding it an acceptable fair use defense.⁵⁸

During July of the 2008 election, the Republican National Committee launched the “BarackBook” Web site, a parody of the popular social networking Web site Facebook.⁵⁹ By showing Barack Obama’s “connections” with various political figures and other infamous individuals, the RNC generated a significant amount of web traffic and media coverage.⁶⁰ Because of the aforementioned precedent decisions, the Republican National Committee could be fairly confident that their “BarackBook” Web site would be successful in asserting a fair use defense because it mocked the social networking aspects of Facebook with Obama’s own web of contacts.⁶¹

ii. Nature of Copyrighted Work

With the second factor of fair use analysis, we focus on the “nature of the copyrighted work.”⁶² Typically, courts will see this factor of the fair use analysis as in favor of an infringer when the subject of the copyright is disseminating factual information as opposed to “fiction or fantasy.”⁶³ In Harper & Row Publishers, Inc. v. Nation Enterprises, J. O’Connor heavily cites an article by Robert A. Gorman titled “Fact or Fancy? The Implications for Copyright”:

[Even] within the field of fact works, there are gradations as to the relative proportion of fact and fancy. One may move from sparsely embellished maps and directories to elegantly written biography. The extent to which one must permit expressive language to be copied, in order to assure dissemination of the underlying facts, will thus vary from case to case.⁶⁴

In quoting this passage, the court was distinguishing a journalist’s need to copy key quotes and “isolated phrases” to get to the core of newsworthy material versus the wholesale copying of entire passages and expressions of an author.⁶⁵

As applied to the context of a political campaign, the second factor would be dependent upon the subject of the asserted fair use defense. For example, we can deduce from Harper & Row that Barack Obama and John McCain would enjoy similar copyright protection in their respective best-selling autobiographies that Gerald Ford did in his book “A Time to Heal”.⁶⁶

A more interesting application of the second factor of fair use analysis might be whether a competitor could appropriate one of the candidate’s highly successful fundraising emails. In fact, in a somewhat related recent case, a car-dealership’s 54-word “thank you” note was seen as protectable against a competitor’s infringement in CRA Mktg., Inc. v. Brandow’s Fairway Chrysler-Plymouth-Jeep-Eagle, Inc.⁶⁷ Although the campaigns are highly factual in nature, it is undeniable that elements of the political advertising market are commercial and accordingly the court will likely recognize that these works are close to the “core” of intended copyright protection.⁶⁸

iii. Amount and Substantiality of Portion Used

The third factor considers the amount and substantiality of the portion used in the copyright infringement. In the case of Sheldon v. Metro-Goldwyn Pictures Corp., J. Learned Hand in finding against an infringer said, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”⁶⁹ Though the courts have considered the percentage of a copyright infringement versus the copyrighted work as a whole, this test does not necessarily go in the infringer’s favor; but, instead, the court looks as to whether the excerpts play a “key role” in the infringing works.⁷⁰ This factor is highly dependent on individual instances and analysis in the political context would be more effective to focus on the other fair use analysis.

iv. Effect of Use Upon Potential Market or Value of Work

Finally, the fourth factor focuses on “the effect of the use upon the potential market for or value of the copyrighted work.” This final factor is usually considered the single most import element of fair use.⁷¹ In order to negate fair use, a copyright holder will only need to show that if the infringer’s use “should become widespread, it would adversely affect the potential market for the copyrighted work.’⁷²

In the case of political advertising in the context of a presidential election, it is important to identify the copyright holder in order to determine the relevant market. At first glance, one might think that the candidates are the only copyright holders; however, the political advertising world is a fairly complex industry. In some instances, the candidates might be the market and a design firm, such as Sol Sender’s, might be the copyright holder selling their work. Or, in the 2008 election, one could consider the work of artist Shepherd Fairey, who sold his iconic posters through an online marketplace on Barack Obama’s website in order to raise money for his preferred candidate. In all these instances, there is a complicated commercial market intertwined within the political context of fundraising and electioneering, and some infringers argue that their First Amendment right to use protected materials should trump the copyright holders. Nevertheless, the court, as it did in Harper & Row, will likely reject the theory that First Amendment values require a different rule that would “expand fair use to effectively destroy any expectation of copyright protection in the work of a public figure.”⁷³

In an interesting twist, both candidates during the 2008 election made an extensive effort to negotiate a solution to some copyright issues that emerged during the campaign. The televised presidential debates were the copyright property of some of the leading networks, and because of this they are protective of their broadcast rights. The candidates, recognizing the importance of wide dissemination of their ideas and the fact that many supporters want to remix these broadcasts to post them on the Internet, asked the broadcasts to consider adopting a creative commons solution for “Open Debates.” In a letter addressed to the networks, Barack Obama wrote:

I urge both the Commission on Presidential Debates and the television networks to take action to free the content the Presidential debates produce and to engage voters more directly in the questions asked during debates. Technology and the Internet continue to play a revolutionary role in this campaign.⁷⁴

Obama was joined in this proposal by John McCain, who had particularly bad luck with respect to copyright and the distribution of video on the Internet. Several of McCain’s ads were taken down off of YouTube during the campaign because of DMCA takedown requests (possibly from the use of snippets of networks news coverage). Trevor Potter, General Counsel for McCain’s campaign wrote a letter to YouTube officials:

Despite the complete lack of merit in these copyright claims, YouTube has removed our videos immediately upon receipt of takedown notices. This is both unfortunate and unnecessary. It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day. And it is wholly unnecessary from a legal standpoint.⁷⁵

The letter heavily cites Keep Thomson Governor Committee v. Citizens for For Gallen Committee, in which the court declined to enjoin an allegedly infringing political advertisement that featured music that had been licensed by the candidate.⁷⁶ YouTube rebuffed McCain’s request and encouraged the Senator to enhance the complicated fair use doctrine and revise the abusive DMCA provision on Capitol Hill,⁷⁷ thereby underscoring the difficulties in protecting copyright in the new digital paradigm.⁷⁸

III. Conclusion

In a political campaign, copyright protection analysis is extremely complicated because the message and ideas of a candidate become so intertwined with the expression and therefore parties are inclined to use potentially copyrighted material as a cognitive shortcut in discourse. The likely outcome in this situation, as we have seen, would be a favorable result for the defendant as copyright doctrine denies protection for expressive copyright materials when “idea and expression merge so that the free use of the former requires the free use of the latter.”⁷⁹

Nevertheless, it’s important to point out that the asserted copyright protection that a candidate expresses in such a situation is not, at its core, economic; but rather it is a political objection rooted more comfortably in the trademark regime.⁸⁰ Consequently, if a politician is merely trying to do damage control on the discourse surrounding his ideas when a party makes an unauthorized use of a logo, the asserted protection does not appear to exist in either trademark or copyright law.

Economically, it makes more sense for a campaign to control their image not through oppressive copyright restrictions, but to maximize quality distribution to effectively deliver their message. Perhaps this election was a referendum on innovation at its most basic— the voters sought new ideas, and the candidate who was best able to express a message of change was ultimately the victor.

* Footnotes available upon request. If you’d like to publish in something more scholarly than this blog, let me know. 

** Here’s a great piece on campaign speech and copyright claims (PDF) by the Center for Democracy & Technology.