Copyrights and Campaigns

Copyrights and political campaigns, that is.  Ben Sheffner has comprehensive post up about the lawsuit brought by Don Henley against a politician who used two of Henley’s songs from his post-Eagles work in ads mocking Senator Barbara Boxer, a politician with whom Henley is simpatico in his political views:

Both sides in Don Henley‘s lawsuit against California US Senate candidate Chuck DeVore (R) over campaign “parody” videos that used Henley’s tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material.

The motions focus largely on one issue: whether the videos, which use the compositions “The Boys of Summer” and “All She Wants to do is Dance,” are indeed “parodies,” and thus likely fair uses, or, rather, unprivileged “satires.”

Sheffner provides in-depth consideration of applicable precedent and the workability of the distinction between parody and satire.  (A short but also comprehensive article on the topic, “The Politics of Fair Use”, was written by Denise Mroz and David Levenson, and can be found in NYSBA Entertainment Arts & Sports Law Journal, Vol. 18, No. 3 (Fall/Winter 2007).)  As Sheffner discusses, in a case involving an allegation of copyright infringement, all of the action is occurring in determining whether using the songs without permission constitutes an allowable “fair use” under US copyright law – because US copyright law recognizes a fairly robust parody exception to copyright infringement, as set out in the US Supreme Court decision in Campbell v Acuff-Rose.  The existence and extent of a parody exception (and/or a satire exception) has an importance well beyond political campaigns – it can be of significance in areas such as documentary and fictional film-making as well.  Of particular note for Canadians is the fact that under Canadian copyright law, it is unlikely that the debate could occur at all.

The interface of copyright law and political campaigns (and filmmaking) is likely only to increase over time – as digital media allows for an increased ability to mix and mash-up materials, the temptation to make use of elements which are subject to copyright protection will only increase.  Indeed, Canadians enjoyed their own brief flare-up a few years ago when copyright and political campaigns collided.  As the Toronto Star reported in January 2007:

Conservative attack ads fired at Liberal Leader Stephane Dion may end up sideswiping the ruling party after questions were raised about possible breach of copyright laws.

The Conservatives had created three ads which appeared to use footage from the Liberal leadership debates which took place in 2006.  According to the Star story, “that footage belongs to a consortium of TV networks which pooled their resources to provide live coverage of the debates” (presumably the copyright of the networks arises under section 21 of the Copyright Act (Canada)).  It would appear then that, prima facie, the Conservative ads infringed copyright in the footage (whether somebody should be entitled to copyright protection just because they plopped a camera in front of some people and pressed “record” is best left for another day).

The incident afforded an opportunity to reflect on a larger issue: should there evenbea possibility of infringement in situations like this?  In Canada, this appeared to be a case ofprima facieinfringement – while American readers might have been thinking that there was at least a plausible argument that the use qualified as “fair use”.  But Canada lacks a “fair use” concept, instead having a more limited “fair dealing” concept.  TheCopyright Actenumerates certain exceptions to infringement – and if you can’t fit yourself into one of them, you’ve infringed copyright.

As Michael Geist, who was quoted in the Star article, noted, there is a remote possibility that the use of the footage could fall under one of the “fair dealing” exceptions to infringement outlined in section 29.1 of the Copyright Act (Canada):

Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

That would have been a difficult argument to make.  First, the ads lacked any attribution to the owner of the footage, so the obligation to identify the source was not met.  More fundamentally, however, is the matter of whether this was properly a case of “criticism”.  If so, it would represent a novel expansion of the “criticism” concept.  Generally, the criticism has been understood to allow a reproduction in order to enable criticism of the work being reproduced – so, for example, if you’re discussing a painting, you should be able to reproduce the painting in the context of your essay, in order to enable the readers to appreciate what it is you’re discussing.  But in the case of the Conservative ads, they weren’t engaged in a criticism of the work which is protected by copyright (i.e., the recorded footage itself), they engaged in a criticism of a subsidiary element which is itself embodied therein (this “subsidiary element”, i.e., the “performance” of Dion and Ignatieff is unlikely itself to be the subject of copyright protection).

Assuming the Conservatives could clear the high hurdle that their use in fact constitutes “criticism”, question of whether the “dealing” is “fair” would need to be addressed.  Per the Supreme Court of Canada’s decision in the CCH case, they would then need to satisfy the following tests (see para. 53 of the decision):

(1) the purpose of the dealing;

(2) the character of the dealing;

(3) the amount of the dealing;

(4) alternatives to the dealing;

(5) the nature of the work; and

(6) the effect of the dealing on the work.

Item (1) is really just a reiteration of the question of whether what they are doing constitutes “criticism”.  Items (3) through (6) would likely favour the hypothetical Conservative argument (being, respectively, minimal, none (or limited), largely irrelevant and none).  Item (2), however, could, in tandem with item (1), be fatal to the argument, since the Supreme Court expressly mentioned that “multiple copies of works … being widely distributed” will “tend to be unfair”; it’s an open question whether such an analysis merits application in a digital/broadcast context, but, again on it’s face, it doesn’t look good for the Conservatives.

I’ll leave the final word to Michael Geist, who I think got the salient issue exactly right:

“Frankly, it should be beyond doubt that they should be able to use short clips of these kinds of public political events that should fall under a fair use doctrine. I think it’s unfortunate that under Canadian copyright law there is some level of uncertainty.”

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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