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Is it legal for a politician to use a popular song for a political rally?

Posted by Steve Vondran | Nov 21, 2022

Attorney Steve® Copyright Law Essentials - Music Law [Fair Use]

politician at rally

Introduction

If you are an artist, musician, band, record label, music publisher, or a politician seeking political office, this blog will provide a quick general review of some of the cases that have turned up in the area of using unlicensed third-party music for political rallies, functions, events, fundraisers, etc.  The quick response is probably not a good idea, and such use may well constitute copyright infringement.  Bands like Boston, Heart, Tom Petty, Rolling Stones, and artists such as Bruce Springsteen and Neil Young and others have been known to take issue with this - especially where their political views differ from that of the politician (ex. congresswoman, senator, presidential candidate, or other public figure seeking political office).

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Case Law Survey

Here is what legal research uncovered:

Issue:

When can an unlicensed song be used in a political campaign as fair use?

Conclusion:

The fair use of a copyrighted work is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered are: (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. (17 U.S.C. § 107 (2022))

Under the first factor, the "purpose and character of the use," the court considers the extent to which the new work is transformative. The new work must add something new, with a further purpose or different character, altering the first with new expression, meaning, or message. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

Where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a higher or different artistic use is insufficient to render a work transformative. An overarching political purpose does not automatically render the use of any non-political work transformative. (Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021))

The first fair use factor also asks whether the secondary work is commercial. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. (Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021))

In Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010), the court held that the defendants' political campaign videos were commercial in nature because the defendants stood to gain publicity and campaign donations from their use of the plaintiff's music.

The second factor, the "nature of the copyrighted work," reflects a recognition that creative works are closer to the core of intended copyright protection than informational and functional works. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

The third factor asks whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of copying. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

Under the fourth and final factor, the question is whether actual market harm resulted from the defendant's use and whether unrestricted and widespread conduct of the sort engaged by the defendant would result in a substantially adverse impact on the potential market for the original or its derivatives. The relevant inquiry is whether the new work tends to supplant or substitute the potential market for the original or its derivatives. Harm caused by effective criticism or disparagement is not a cognizable injury under the Copyright Act. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

Analysis of this factor requires the court to balance the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. (Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021))

The fair use factors are to be weighed case-by-case with an eye towards the policies underlying copyright protection. They should not be treated in isolation from one another. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

In Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021), the United States District Court for the Southern District of New York considered whether former President Trump's unauthorized use of Eddie Grant's song, "Electric Avenue," in an animated campaign video constituted fair use. While running for reelection, former President Trump published a tweet from his personal Twitter account containing an animated video that endorsed his 2020 presidential reelection campaign. Copyright owner Eddie Grant sued former President Trump for violation of federal copyright law. The Court determined that the campaign video's use of Electric Avenue was not "transformative" because it did not modify the song or use it as satire. Further, the campaign video was commercial in nature. With regard to the second factor, the Court determined that Electric Avenue was clearly a creative work that was published and publicly available. The third factor also weighed against President Trump's fair use argument. Although only 17.5% of the song's total length was played in the campaign video, the song played for 72.7% of the video's duration. The Court also concluded that the campaign video's use could threaten Grant's licensing markets, as uncompensated use of Grant's music in promotional videos–political or otherwise–would embolden would-be infringers and undermine Grant's ability to obtain compensation in exchange for licensing his music. All four factors favored the plaintiff. Accordingly, former President Trump failed to demonstrate fair use as a matter of law.

Parody is protected within the fair use framework. Parody is the use of some portion of a work in order to hold it up to ridicule or otherwise comment or shed light on it. However, there is a difference between parody, in which the copyrighted work is the target, and satire, in which the copyrighted work is merely a vehicle to poke fun at another target. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

The threshold question when fair use is raised in defense of a parody is whether a parodic character may reasonably be perceived. This is not the end of the inquiry, however. Parody, like any other use, must work its way through the relevant factors. (Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010))

In Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010), musician Don Henley of the Eagles claimed that the defendant, a Republican candidate for the U.S. Senate for California, infringed the copyrighted songs "The Boys of Summer" and "All She Wants to Do is Dance" with two political advertisements featuring the songs "The Hope of November" and "All She Wants to Do Is Tax." The defendant revised the lyrics of the Henley songs to poke fun at Democratic politicians and used the revised songs in campaign videos posted to YouTube. The defendant claimed that the songs constituted parody and were fair use. After going through the four factors for each song, the Court ultimately concluded that neither song constituted fair use.

Facts:

A prominent politician wants to use a Bruce Springsteen song in a political campaign rally. They do not have a license or permission to use the music and instead claim that it is fair use under the copyright laws to use the music for political purposes.  Is the politician free to move forward and play, for example, "Born to Run" at a political function?

Law:

17 U.S.C. § 106 (2022) provides that, subject to sections 107 through 122, the owner of a copyright has the exclusive rights to do and authorize any of the following:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

However, 17 U.S.C. § 107 (2022) provides that the "fair use" of a copyrighted work is not an infringement of copyright and sets out four factors to consider in determining whether the use of a copyrighted work is fair:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) ("Henley"), the United States District Court for the Central District of California explained that the fair use factors are to be weighed case-by-case with an eye towards the policies underlying copyright protection. They should not be treated in isolation from one another (at 1150-1151):

Fair use is an exception to a copyright holder's right to exclusive use of the original work and its derivatives. It has been described as "a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (quoting H. Ball, Law of Copyright & Literary Property 260 (1944)). The privilege reflects a recognition that some limited use of copyrighted material is necessary to allow artists and authors to improve upon, comment on, or criticize prior works. See id.; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500(1994).

Section 107 of the Copyright Act codified the common law framework for identifying fair use:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(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.

17 U.S.C. § 107. The analysis "permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)) (internal brackets omitted). The factors are not winner-take-all categories

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to be tallied at the end to determine the prevailing party; they are intended to be carefully weighed case by case with an eye towards the policies underlying copyright protection. See id. "Nor may the four statutory factors be treated in isolation one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright." Id. at 578, 114 S.Ct. 1164: accord Dr. Seuss Enters., L.P. v. Penguin Books ("Dr. Seuss II"), 109 F.3d 1394, 1399 (9th Cir.1997).

The Court also set out the tests for each of the four fair use factors (at 1151):

Under the first factor, the "purpose and character of the use," the Court considers the extent to which the new work is "transformative." Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 800 (9th Cir.2003). The new work must add "something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id. (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164). The Court also considers whether the purpose of the new work was for- or not-for-profit. Id.

The second factor, the "nature of the copyrighted work," reflects a recognition "that creative works are 'closer to the core of intended copyright protection' than informational and functional works." Id. at 803 (quoting Dr. Seuss II, 109 F.3d at 1402).

The third factor "asks whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole, are reasonable in relation to the purpose of copying." Id. (quoting Dr. Seuss II, 109 F.3d at 1402) (internal quotation marks omitted).

Under the fourth and final factor, the question is "whether actual market harm resulted from the defendant's use ... and whether 'unrestricted and widespread conduct of the sort engaged by the defendant ... would result in a substantially adverse impact on the potential market' for the original or its derivatives." Id. at 804 (quoting Campbell, 510 U.S. at 590, 114 S.Ct. 1164). The relevant inquiry is whether the new work tends to supplant or substitute for the potential market for the original or its derivatives. Campbell, 510 U.S. at 592, 114 S.Ct. 1164. Harm caused by effective criticism or disparagement is not cognizable injury under the Copyright Act. Id. at 591-92, 114 S.Ct. 1164.

In Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021) ("Grant"), the United States District Court for the Southern District of New York considered whether former President Trump's unauthorized use of Eddie Grant's song, "Electric Avenue," in an animated campaign video constituted fair use under 17 U.S.C. § 107. While running for reelection, former President Trump published a tweet from his personal Twitter account containing a 55-second animated video that endorsed his 2020 presidential reelection campaign. Starting 15 seconds into the video, Electric Avenue can be heard clearly, along with an excerpt of a speech by now-President Biden. Copyright owner Eddie Grant sued former President Trump for violation of federal copyright law.

The Court explained that the first fair use factor asks the extent to which the secondary work is "transformative" and whether it is commercial. To determine if the secondary work is transformative, the court asks whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. The Court determined that the campaign video's use of Electric Avenue was not "transformative" because it did not modify the song or use it as satire. Where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a higher or different artistic use is insufficient to render a work transformative. An overarching political purpose does not automatically render the use of any non-political work transformative (at 284-286):

The first fair use factor asks the extent to which the secondary work is "transformative" and whether it is commercial. See Andy Warhol Found., 11 F.4th at 36–38. To determine if the secondary work is transformative, the court asks "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id. (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164 ). This inquiry requires the court to examine how the secondary work may "reasonably be perceived." Id. (quoting Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013) ). The paradigmatic examples of transformative use enumerated in the Copyright Act involve secondary works that comment on the original work: namely, "criticism, comment, news reporting, teaching ..., scholarship, or research." 17 U.S.C. § 107. However, a secondary work does not need to comment on the original work in order to qualify as fair use. Andy Warhol Found., 11 F.4th at 38–39.

The defendants argue that the video's use of Electric Avenue was transformative as a matter of law because the video and the song serve different purposes. But the defendants' argument misapprehends the focus of the transformative use inquiry. While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation's use of Grant's song. As the Second Circuit Court of Appeals recently stated: "where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use[ ]' is insufficient to render a work transformative." Id. at 41 (quoting

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Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992)). In this case, the video's overarching political purpose does not automatically render its use of any non-political work transformative. See, e.g., Henley v. DeVore, 733 F. Supp. 2d 1144, 1164 (C.D. Cal. 2010) (rejecting fair use defense at the summary judgment stage where creators of political campaign ads rewrote some of the lyrics but appropriated the melody, rhyme scheme, and syntax of two Don Henley songs without permission); Browne v. McCain, 612 F. Supp. 2d 1125, 1129-31 (C.D. Cal. 2009) (rejecting fair use defense at the motion to dismiss stage where a political campaign ad featured a Jackson Browne song without permission, even though other audio was played on top of the song).

As to the character of the video's use of Electric Avenue, it is best described as a wholesale copying of music to accompany a political campaign ad. As compared to the uses in Henley, the use here does far less–if anything–to modify the song or to comment on the song or its author. In Henley, the defendants changed some of the lyrics to the copyrighted songs and even provided their own vocals. See 733 F. Supp. 2d at 1148-49. And because the defendants there used the songs as vehicles for their political messaging, in one instance to poke fun at Henley himself for his political affiliations, the court found that the secondary works were satire and parody, respectively. See id. at 1152, 1163-64. Nonetheless, the court found that the uses were not transformative because they appropriated too much of the songs in relation to any legitimate parodic purpose. Id. at 1163-64.

In this case, the video's creator did not edit the song's lyrics, vocals, or instrumentals at all, and the song is immediately recognizable when it begins playing around the fifteen-second mark of the video, notwithstanding that audio of President Biden's speech can be heard simultaneously. Moreover, the animation does not use Electric Avenue as a vehicle to deliver its satirical message, and it makes no effort to poke fun at the song or Grant. As the Supreme Court has stated:

If ... the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) .... Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's ... imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Campbell, 510 U.S. at 580-81, 114 S.Ct. 1164. The defendants concede that the video here is clearly satire, not a parody of Electric Avenue or Grant, and the defendants have offered no justification for their extensive borrowing. The fact that the video on the whole constitutes political messaging–just as the advertisements did in Henley–does not, by itself, support a finding of transformative use.

This is also far from the situation in Cariou, where most of the copyrighted works that the Second Circuit Court of Appeals found to have been fairly used were "obscured and altered to the point that [they were] barely recognizable." 714 F.3d at 710. The works in Cariou that were found potentially infringing at the summary judgment stage, on the other hand, "superimposed other elements that did not obscure the original [work,] and ... the original [work] remained ... a major if not dominant component of the impression created by the allegedly infringing work." Andy Warhol Found., 11 F.4th at 41 (citing Cariou, 714 F.3d at 710-11 ). And most

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recently, in Andy Warhol Found., the Second Circuit Court of Appeals concluded that there was no fair use because the secondary work "retain[ed] the essential elements of the [original work] without significantly adding to or altering those elements." Id. at 43.

The same is true here. Electric Avenue is not edited at all and is "instantly recognizable," id. at 47; the additional audio of President Biden's speech does nothing to obscure the song; and the song–which plays for over two-thirds of the duration of the video–is a major component of the impression created by the animation, even though it appears that the video's creator could have chosen nearly any other music to serve the same entertaining purpose. Cf. Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014) ("There's no good reason why defendants should be allowed to appropriate someone else's copyrighted efforts as the starting point in their lampoon, when so many noncopyrighted alternatives ... were available. The fair-use privilege under § 107 is not designed to protect lazy appropriators."). Accordingly, the defendants cannot show that the video's use of Electric Avenue was transformative as a matter of law.

The defendants rely heavily on Brown v. Netflix, Inc., 462 F. Supp. 3d 453 (S.D.N.Y. 2020), aff'd, 855 F. App'x 61 (2d Cir. 2021), which found a documentary's unauthorized use of a song to be transformative and fair, but that case is readily distinguishable. The song at issue there (of which only eight seconds could be heard in the documentary) was used as part of the film's "commentary on the burlesque art form and its resurgence in Portland, Oregon." 855 F. App'x at 63. The court of appeals noted that the film "[did] not merely re-broadcast the [burlesque] performances; rather, it combine[d] those performances with cultural commentary on topics such as gender, sexuality, and the artistic process." Id. While documenting one such performance, the film "incidentally capture[d] [a] dancer's use of the Song as brief background accompaniment to her burlesque act." Id. The use here is different in magnitude and kind: the song plays for more than two-thirds of the animation and plays no discernible role in communicating the video's overarching political commentary. In Brown, by contrast, the excerpt of the song was situated within a performance about which the documentary was commenting, and the song could be heard only briefly and in passing. Moreover, the content of the song substantively contributed to the burlesque act. See 462 F. Supp. 3d at 458. The video here does not comment on the song or depend on its content to communicate its message. Therefore Brown does not help the defendants establish that the use here was transformative.

The first fair use factor also asks whether the secondary work is commercial. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. The Court determined that political campaign videos are commercial in nature, as they seek to gain publicity and campaign donations (at 286-287):

The first fair use factor also asks whether the secondary work is commercial. The defendants argue that political uses are by definition not commercial, but that is not so. "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). "Monetary gain is not the sole criterion," especially in settings where "profit is ill-measured in dollars." Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989).

In Henley, the court held that the defendants' political campaign videos were commercial in nature. 733 F. Supp. 2d at 1159. The court stated that the defendants "stood to gain publicity and campaign donations from their use of Henley's music."

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Id. Thus the court concluded that the defendants " ‘profited' from their use by gaining an advantage without having to pay customary licensing fees to the Plaintiffs." Id. The court also noted that the defendants had paid licensing fees for the video footage used in one of the works at issue. Id. at 1159 n.12. It is impossible to gauge the financial implications of the defendants' use of the copyrighted materials on a motion to dismiss, but the possibility of commercial advantage cannot be excluded at this point, especially in light of the instruction from the Second Circuit Court of Appeals that "the profit/non-profit distinction is context specific, not dollar dominated." Weissmann, 868 F.2d at 1324; see also Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117-18 (9th Cir. 2000) (citing Weissmann and concluding that one church's appropriation of another's copyrighted religious text constituted a commercial use because the infringing church gained an advantage "without having to account to the copyright holder").

The defendants cite to MasterCard Int'l Inc. v. Nader 2000 Primary Comm., Inc., No. 00-cv-6068, 2004 WL 434404, at *7-9 (S.D.N.Y. Mar. 8, 2004), where the court held that a political advertisement's parody of a popular MasterCard commercial was a noncommercial use. The Nader court found persuasive the reasoning of another district court case from Ohio, where a political campaign's use of the famous "AFLAC Duck" commercial was found to be noncommercial because the candidate used the original work "as part of his communicative message, in the context of expressing political speech." Id. at *8 (quoting American Family Life Ins. Co. v. Hagan, 266 F. Supp. 2d 682, 700 (N.D. Ohio 2002) ).

The same cannot be said of the use of Electric Avenue here. Nothing about the song was integral to the video's political message, which is conveyed by the animation and the unflattering excerpts of President Biden's speech. Indeed, the defendants explicitly disclaim any overlap between the purposes of the song and the video. See, e.g., ECF No. 19, at 10. Thus the video does not rely on the song to express its political message; rather, the video incorporates music–like many videos do–to make the video more entertaining and memorable. In no sense does the video parody the copyrighted song or use the song for purposes of commentary. Cf. Nader, 2004 WL 434404, at *12-13. Moreover, there is a well-established market for music licensing, but the defendants sought to gain an advantage by using Grant's popular song without paying Grant the customary licensing fee. Accordingly, the video's use of Electric Avenue appears to be commercial, notwithstanding the video's political purpose. At the very least, the defendants have failed to show that the use was noncommercial as a matter of law.

Because the use was not transformative and appears at this stage to have been commercial, the first fair use factor favors the plaintiffs.

The second fair use factor directs courts to consider the nature of the copyrighted work, including (1) whether it is expressive or creative, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational; and, (2) whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower. However, this factor is assigned limited weight in the overall fair use determination. In Grant, the Court determined that Electric Avenue was clearly a creative work that was published and publicly available. Accordingly, because the first consideration of this factor cut in favor of the plaintiffs and the second consideration was neutral, the nature of the song favored against a determination of "fair use" (at 287-288):

The second fair use factor "directs courts to consider the nature of the copyrighted work, including (1) whether it is ‘expressive or creative or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower.' " Andy Warhol Found., 11 F.4th at 45 (quoting Blanch, 467 F.3d at 256 ).

As to the first consideration, it is clear that Electric Avenue is a creative

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work and therefore is "closer to the core of intended copyright protection." Campbell, 510 U.S. at 586, 114 S.Ct. 1164; see also Henley, 733 F. Supp. 2d at 1160. As to the second consideration, there is no dispute that Electric Avenue is published and publicly available. And while a finding that the original work is unpublished cuts against fair use, "the converse is not necessarily true"–"the fact that a work is published does not mean that the scope of fair use is per se broader." Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 456 (9th Cir. 2020) (quoting 4 William F. Patry, Patry on Copyright § 10:139.30 (2020)), cert. denied, ––– U.S. ––––, 141 S.Ct. 2803, 210 L.Ed.2d 933 (2021).

Accordingly, because the first consideration of this factor cuts in favor of the plaintiffs and the second consideration is neutral, the nature of the song favors the plaintiffs. However, this factor is assigned limited weight in the overall fair use determination. See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202, 220 (2d Cir. 2015) ("The second factor has rarely played a significant role in the determination of a fair use dispute.").

The third fair use factor considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In assessing this factor, the court considers not only the quantity of the materials used but also their quality and importance in relation to the original work. The ultimate question under this factor is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying. In Grant, the Court held that although only 17.5% of the song's total length was played in the campaign video, the song played for 72.7% of the video's duration, and therefore the substantial use of Electric Avenue weighed against former President Trump's fair use argument (at 288):

The third fair use factor considers "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). "In assessing this factor, [the court] consider[s] not only the quantity of the materials used but also their quality and importance in relation to the original work." Andy Warhol Found., 11 F.4th at 45–46. All of these considerations favor the plaintiffs. The introductory portion of the song that is used in the animation is immediately recognizable. The excerpted portion of the song also includes the chorus, which repeats six times during the song, comprises the majority of the song's lyrics, and is of central importance to the original work. Moreover, while the excerpted forty seconds of the song make up only 17.5% of the song's total length, the song plays for 72.7% of the animation's duration. "The ultimate question under this factor is whether ‘the quantity and value of the materials used are reasonable in relation to the purpose of the copying.' " Id. (quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164 ). That is plainly not the case here. The song plays for the majority of the animation; the excerpt is of central importance to the original work; and the defendants have not articulated any purpose for the copying. Accordingly, this factor favors Grant.

The fourth and final fair use factor asks whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work. Analysis of this factor requires the court to balance the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. The Court concluded that the campaign video's use may threaten Grant's licensing markets, as uncompensated use of Grant's music in promotional videos–political or otherwise–would embolden would-be infringers and undermine Grant's ability to obtain compensation in exchange for licensing his music (at 288-289):

The fourth and final fair use factor asks "whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work. Analysis of this factor requires [the court] to balance the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied." Id. at 48. The defendants correctly note that this factor asks "not whether the second work would damage the market for the first (by, for example, devaluing it through parody or criticism), but whether it usurps the market for the first by offering a competing substitute." Id. However, and critically here, "[t]his analysis embraces both the primary market for the work and any derivative markets that exist or that its author might reasonably license others to develop, regardless of whether the particular author claiming infringement has elected to develop such markets." Id. (citing Salinger v. Colting, 607 F.3d 68, 74, 83 (2d Cir. 2010) ).

[563 F.Supp.3d 289]

Of course, the animation here will not serve as a satisfactory substitute for the song itself. However, the video's use may threaten Grant's licensing markets; the issue is whether "unrestricted and widespread conduct of the sort engaged in by [the defendants]" would substantially harm this potential market. Id. (quoting Campbell, 510 U.S. at 590, 114 S.Ct. 1164 ). It is plain that widespread, uncompensated use of Grant's music in promotional videos–political or otherwise–would embolden would-be infringers and undermine Grant's ability to obtain compensation in exchange for licensing his music.

The defendants do not seriously dispute this. Rather, they argue that Grant has failed to offer evidence that he has entered, or intends to enter, the market for licensing music to promotional videos. But Grant bears no such burden, particularly in response to a motion to dismiss. The plaintiffs have satisfied any initial burden of identifying the relevant market–licensing for promotional videos–as a market that the defendants' copying would harm. See id. at 49–50 & n.11; ECF No. 24, at 21-23. It is the defendants who bear the ultimate burden of showing a lack of market harm, and they cannot do so based simply on the allegations in the Complaint. Cf. Andy Warhol Found., 11 F.4th at 49–50; Henley, 733 F. Supp. 2d at 1162-63.

The fourth factor also "take[s] into account the public benefits the copying will likely produce." Google LLC v. Oracle Am., Inc., ––– U.S. ––––, 141 S. Ct. 1183 1206, 209 L.Ed.2d 311 (2021). Certainly political speech, and in particular "[t]he act of ridiculing and lampooning public figures[,] is a rich part of our First Amendment tradition[.]" Henley, 733 F. Supp. 2d at 1154. However, denying the defendants' fair use defense in this case–especially at this early stage in the litigation–will not chill legitimate political satire. Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law by, for example: paying for a license; obtaining the copyright owner's permission; or "transforming" the chosen song by altering it with "new expression, meaning, or message," Campbell, 510 U.S. at 579, 114 S.Ct. 1164. The creator of the video here did none of that.

The Court ultimately concluded that all four factors favored the plaintiff. Accordingly, former President Trump failed to demonstrate fair use as a matter of law (at 289-290):

The Court has applied the foregoing fair use factors in light of the purposes of copyright, see Andy Warhol Found., 11 F.4th at 36–38, and finds that each factor favors the plaintiffs at this stage. There is some inherent tension between the promotion of valuable political satire and the copyright protections of the existing art that satirists may wish to use as source material. But the copyright law "merely insist[s] that, just as artists must pay for their paint, canvas, neon tubes, marble, film, or digital cameras, if they choose to incorporate the existing copyrighted expression of other artists in ways that draw their purpose and character from that work ..., they must pay for that material as well." Id. at 52. The same principle applies to political satirists.

The creator of the video here made a wholesale copy of a substantial portion of Grant's music in order to make the animation more entertaining. The video did not parody the music or transform it in any way. The video's overarching political purpose does not automatically make this use transformative, and the other fair use factors also favor the plaintiffs at this stage. Accordingly, the defendants have failed to demonstrate fair use as a matter of law. The defendants may reassert their fair use

[563 F.Supp.3d 290]

defense at the summary judgment stage when there is a more developed factual record.

In Henleysupra, musician Don Henley of the Eagles claimed that the defendant, a Republican candidate for the U.S. Senate for California, infringed the copyrighted songs "The Boys of Summer" and "All She Wants to Do is Dance" with two political advertisements featuring the songs "The Hope of November" and "All She Wants to Do Is Tax." The defendant revised the lyrics of the Henley songs to poke fun at Democratic politicians and used the revised songs in campaign videos posted to YouTube. The defendant claimed that the songs constituted parody and were fair use.

The United States District Court for the Central District of California explained that parody is protected within the fair use framework. Parody is the use of some portion of a work in order to hold it up to ridicule or otherwise comment or shed light on it (at 1151-1152):

The Defendants' primary fair use argument is that their works constitute parody. Parody is the use of some portion of a work in order to "hold[ ] it up to ridicule," or otherwise comment or shed light on it. Dr. Seuss II, 109 F.3d at 1400-01 (citation omitted). Courts have deemed parody worthy of protection within the fair use framework. First, parody has been considered transformative because it provides socially-valuable criticism or commentary of the subject work. Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Second, parodies are permitted to draw from the most creative expressions because they "almost invariably copy publicly known, expressive works." Id. at 586, 114 S.Ct. 1164. Third, the parodist needs to use at least some portion of the original because the effectiveness of parody depends on its ability to mimic or "conjure up" the original. Id. at 580-81, 588, 114 S.Ct. 1164. Finally, because the author is unlikely to permit the use of his or her work to criticize

[733 F.Supp.2d 1152]

or ridicule that work, a parody is unlikely to supplant the market for the original or its derivatives. Id. at 592, 114 S.Ct. 1164.

However, the Court distinguished between parody, in which the copyrighted work is the target, and satire, in which the copyrighted work is merely a vehicle to poke fun at another target (at 1152):

In the seminal case of Campbell v. Acuff-Rose Music, Inc., the Supreme Court distinguished "between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target)." Dr. Seuss II, 109 F.3d at 1400 (citing Campbell, 510 U.S. at 580, 114 S.Ct. 1164). The parodist is justified in using the original work because a parody's effectiveness "necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin." Campbell, 510 U.S. at 588, 114 S.Ct. 1164. The parodist has no alternative but to use the work. See id. In contrast, the satirist who ridicules subjects unrelated to the work lacks the same claim to use of the work, which the satirist "merely uses to get attention or to avoid the drudgery in working up something fresh." Id. at 580, 114 S.Ct. 1164. As the Court put it:

Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Id. at 580-81, 114 S.Ct. 1164.

The Court explained that the threshold question when fair use is raised in defense of a parody is whether a parodic character may reasonably be perceived. This is not the end of the inquiry, however. Parody, like any other use, must work its way through the relevant factors (at 1152):

"The threshold question when fair use is raised in defense of a parody is whether a parodic character may reasonably be perceived." Id. at 582, 114 S.Ct. 1164. This is not, however, the end of the inquiry: "parody, like any other use, has to work its way through the relevant factors and be judged case by case, in light of the ends of copyright law." Id. at 581, 114 S.Ct. 1164. Indeed, the Supreme Court recognizes that parody is not a binary question, but rather a matter of degree. See id. at 580 n. 14, 114 S.Ct. 1164. The parodist that directly targets the original work has a greater justification for appropriation than the parodist whose aim at the original is looser. See id. The "loose" parodist has a greater burden of proving the necessity of the use and that the parody does not risk superseding potential markets for the original. Id. at 580 n. 14, 582 n. 16, 114 S.Ct. 1164.

After going through the four factors for each song, the Court ultimately concluded that neither song constituted fair use (at 1163-1164):

That said, the Defendants' song "Tax" does not present a difficult question. The song is pure satire which fails to take aim at the original or its author. It therefore lacks justification to borrow from "Dance," which, as a musical composition, lies at the core of copyright protection. And it does far more than borrow from "Dance"-it appropriates the entire melody, rhyme scheme, syntax, and a majority of the lyrics. The Defendants have also failed to show that widespread use of this and similar satirical songs would not affect either the market for the original or potential derivatives. "Tax" is clearly not fair use.

"November," on the other hand, presents a closer question, assuming that targeting the author is a legitimate parodic purpose. Although it primarily targets Obama, it does, in part, lampoon Henley as an Obama supporter. It may thus contain

[733 F.Supp.2d 1164]

some parodic element and would be justified in appropriating some of "Summer." However, "November" goes far beyond what is necessary to conjure up Henley to hold him up to ridicule. As with "Tax," "November" copies the melody, rhyme, syntax, and most of the lyrics, and the lyrics are mostly satirical in nature. Given the extent of the copying, the Defendants have not met their burden of demonstrating the absence of market impact. Although the Court finds this to be a closer question than "Tax," the Defendants have not met their burden of demonstrating that "November" constitutes fair use.

As noted above, the parties do not dispute that the Plaintiffs own a copyright to "Summer" and "Dance," or that the Defendants' songs "November" and "Tax" copy substantial portions of those songs. Because the Defendants have failed to meet their burden of establishing a fair use defense, the Plaintiffs are entitled to summary judgment on their direct copyright infringement claim.

No other decisions were identified that discussed whether a politician's use of an unlicensed song in a political campaign is fair use.

Legal Authorities

17 U.S.C. § 106 (2022)
17 U.S.C. § 107 (2022)
Henley v. Devore, 733 F.Supp.2d 1144 (C.D. Cal. 2010)
Grant v. Trump, 563 F.Supp.3d 278 (S.D. N.Y. 2021)

ASCAP and BMI Blanket Licenses

ASCAP, the American Society of Composers, Authors, and Publishers, is an organization that protects the copyrighted music of its members. ASCAP licenses the public performances of its members' music, meaning that anyone who wants to use ASCAP music for a public event must first get permission from ASCAP and pay a fee. This includes politicians who want to use ASCAP music at rallies or other events. However, ASCAP does not license the use of its music for political campaigns. This means that politicians who use ASCAP music in campaign ads or videos are violating ASCAP's copyright and could be sued for infringement. In addition, using ASCAP music without a license can also lead to ASCAP revoking the blanket license that allows businesses to play ASCAP music in public places. Therefore, it is generally advisable for politicians to steer clear of using copyrighted music without first obtaining a license.

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Steve Vondran

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