Claims of infringement can be unclear in fast-moving campaigns

Politicians like to use popular songs and slogans in their campaigns, and artists often feel helpless when even a portion of their work is used without permission — especially by a candidate they oppose. On the other side, politicos are suspicious that the copyright claim is just an excuse to stifle their messaging.

Though both sides may squawk, the world of campaigns is so fast-moving that by the time both sides have aired their grievances, the candidate has moved on to a new election tactic. So a big-picture legal resolution is unlikely. And, as one lawyer says, “There is a fine line between free speech rights and copyright.”

One of the more high-profile flaps was launched when”Friday Night Lights” executive producer Peter Berg sent Mitt Romney’s campaign a letter asking them to stop using one of the show’s signature catchphrases — “Clear Eyes, Full Hearts, Can’t Lose.”Berg got no response, but perhaps a shrug: The campaign offered donors a rubber bracelet that featured a slight variation of the phrase.

Copyright law experts are skeptical whether Berg or the series producer, NBCUniversal, has much of a legal claim.

The disputes this cycle pale in comparison to those in the last presidential race, when a high-profile suit filed by Jackson Browne over the use of his music in Republican campaign spots led to a hefty settlement and apology from the Republican National Committee. But the 2012 battles are no less important to the issues over copyright.

During the summer, Mitt Romney’s campaign produced a web ad including a clip of President Obama singing a few bars from Al Green’s “Let’s Stay Together.” BMG Rights Management, representing the songwriters, asked YouTube to take down the video. When the website agreed, the Romney campaign quickly complained that it was fair use.

Some suspected that the move was instigated by Green, who is an ardent Obama supporter. But BMG said the takedown request was issued by the estate of one of the co-authors of the music, Al Jackson Jr., whose family said that they did “not wish his legacy to be associated with political ads by either candidate.”

YouTube restored the video, apparently siding with the Romney campaign. “We also reinstate videos in cases where we are confident that the material is not infringing, or where there is abuse of our copyright tools,” YouTube said at the time.

As of last week, the video was still posted.

Digital-rights advocates say such episodes point to misuse of the copyright system, especially when it comes to YouTube. Under the “safe harbor” provisions of the Digital Millennium Copyright Act, YouTube and other user-generated sites are shielded from liability if it promptly removes infringing content, which it does via a Content ID system and when it gets a takedown notice from the copyright holder.

It also has a counter notification process in which a campaign can appeal — and although the Romney campaign video was restored within days, the process can take a week or more.

The trouble for a fast-moving election campaign is that by the time a video is restored, the message often has changed. In a study of abuse of the takedown process in the 2008 campaign, the Center for Democracy & Technology noted that in a campaign, “10 business days can be a lifetime, and the removal of important and timely non-infringing campaign videos for such a period can reduce their effectiveness and potentially impact an election. In other words, the damage is often done by the time a video can be put back online.”

Yet for the artist who wants to stay apolitical, or who sees their work used by a candidate with alternate stripes, there can be a genuine worry that it will seem an implicit endorsement, particularly if it becomes a campaign theme.

The power of publicity can sometimes force a campaign’s hand, saving the expense of a legal fight. That was the case with Bobby McFerrin, who had the hit “Don’t Worry, Be Happy” in 1988 but was unhappy when the campaign of George H.W. Bush started using it at events. After McFerrin’s outcry, in which he even dropped it from his own playlist, the campaign eventually stopped using the song.

The concern of false endorsement, in fact, can be greater than the concern over infringement.

In Berg’s case, he may have had no other choice than to go public with his displeasure. Mary Rasenberger, a former policy adviser in the U.S. Copyright Office who is now with the firm Cowan, Debaets, Abrahams & Sheppard, says the phrase may be “borderline copyright-able.” But Berg’s letter — distributed to the media — was such a swipe at Romney that its wide dissemination may have done the trick.

Berg did not publicly object when the Obama campaign used the phrase.

Though Republicans may complain that they are being unfairly targeted from artists in the left-leaning entertainment industry, there’s not much they can do about it. Copyright, Rasenberger points out, “is the right to prevent the use of your work in a way you do not want it to be used.” She says that particularly in the case of music, “there is some association with the campaign and the song.

“That’s not free speech; that’s copyright,” she says. “There is a fine line between free speech rights and copyright, and I actually think our copyright system has dealt with it really well.”

Some of the most flagrant cases were stifled: the Browne case, a 2010 judgment against U.S. Senate candidate Chuck DeVore for the use of Don Henley music, and a video apology from former Florida Gov. Charlie Crist for use of David Byrne works. Still, there continue to be ample examples of irate musicians. That’s even when a candidate expresses a fandom for an artist: When Republican vice presidential nominee Paul Ryan listed Rage Against the Machine among his favorites, guitarist Tom Morello, very active in progressive politics, issued a biting response.

Nevertheless, if the lesson for campaigns is to always get a license, you can hardly say that it is a lesson learned. Asked whether this cycle will lead to a new awareness among politicos when they use music, or any other content, without permission, Rasenberger says, “No. Campaigns are so in the moment. So hectic. Anything in a campaign is very temporary. It has a short life. Often [the mentality] is ‘use first, ask later,’ especially if you don’t have a lot of time.”

There’s also another option: get an artist to come up with a song for you, which is something that Bruce Springsteen did at the request of Obama as he performed in Ohio, Iowa and Virginia. His song, “Forward, and Away We Go,” is meant to rally a crowd, but given that it borrows the campaign’s slogan, there’s little chance you’ll soon hear it at an upcoming Romney-Ryan event.

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