Tomorrow is election day, and I think it’s fair to say most people are ready for this election cycle to be over. However, outside of political platforms and revelations, there are other important nuggets that graphic designers can glean from elections: what is fair use and how it applies to copyright infringement.
This election, as well as past elections, has been fraught with copyright violations claims. Let’s review some of the past and present copyright infringements cases involving politics while differentiating what is fair use and how to use it correctly.
What is Fair Use?
“The Copyright Law provides a limited right to make fair use in a later work of elements that otherwise would be found to have been copied from, or derived from an earlier work. This is known as “fair use,” but it rarely applies to designs because it generally relates to uses for purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.” Copyright Law § 107.
In determining whether a particular use is a fair use, the Copyright Law mentions the following factors, which are not exhaustive:
1. “The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.” A commercial use is less likely to be found to be fair use.
2. “The nature of the copyrighted work.” Fair use is less likely for unpublished works than for published works, for creative works than for factual works, and for readily available works than for rare works.
3. “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This concerns both quantitative and qualitative amounts used. There is no per se rule. Using an entire photograph in a compilation probably is not fair use. But using a qualitatively important detail from a photograph also might not be fair use.
4. “The effect of the use upon the potential market for or value of the copyrighted work.” This has been said to be the most important factor. Lost licensing revenues may be part of this analysis.
The courts have applied a fifth factor, namely, whether the use is “transformative.” For example, fair use also was found where small digital “thumbnail” reproductions of photographs were used in a visual search engine. Kelly v. Arriba Soft Corp. Similarly, small reproductions of Grateful Dead concert posters in an illustrated biography of the band were considered transformative and constituted fair use. Bill Graham Archives v. Dorling Kindersley Ltd.”
7 Cases of Politics & Infringement (and Parody):
Trump and the Bald Eagle
Back in March of this year, Trump’s campaign was sued by wildlife photographers for using a copyright-protected image of a bald eagle without receiving permission from the photographers.Trump and the photographers eventually settled the issue and his campaign is no longer using their photograph of the bald eagle.
Louisiana: Pick Your Passion
In a move labeled as parody, MoveOn.Org replicated the tourism branding campaign led by Louisiana Governor Bobby Jindal. Jindal was not too thrilled and sought an injunction on a billboard that pointed out Jindal’s Medicaid policy. The judge ruled in favor of MoveOn because it deemed the billboard as free speech on the issue.
Obama’s Hope Poster designed by Shepard Fairey
“Artist Shepard Fairey took a digital copy of an Associated Press photo of Barack Obama, made changes in it, and used it for the “HOPE” posters he sold during the 2008 Presidential campaign. AP asserted an infringement claim, and Fairey went to court for a declaration of non-infringement. Fairey eventually settled AP’s infringement claim by paying more than $1 million to AP. Fairey v. Associated Press.” — William Borchard.
Bernie Sanders is My Comrade
Liberty Maniacs designed “Bernie is my Comrade” shirts and mugs during this election cycle, and their merchandise did not please the Bernie campaign. In fact, Sanders’ lawyers sent Liberty Maniacs a cease and desist letter based on the ground of copyright infringement. There were no follow-up articles on if this case went to a court or if a settlement was reached. Liberty Maniacs claim parody and have not taken the merchandise down from their site.
Liberty Maniacs received similar ire from Hillary Clinton when Liberty Maniacs sold products that transformed Clinton’s “Ready for Hillary” slogan into a “I’m Ready for Oligarchy” designs. However, due to the parodical nature of the design, they did not infringe on Hillary’s copyright.
Paul Paulson Using Illustration for Campaign Without Consent
Artist Victor Davila illustrated this logo for Orlando, which has become the center for a copyright infringement. Orlando’s mayoral candidate Paul Paulson lifted the illustration and used it on campaign marketing material without contacting Davila. Paulson ignored Davila’s attempts to communicate wth him about payment for usage and licensure. For more info on this copyright infringement case, check out this article on Orlando Weekly.
Jeb Bush and the Southeastern Conference
College football fans are particularly aware of how the south treats football as a religion, and Jeb Bush wanted to seize the opportunity for outreach to the mass crowds attending southern football games. However, he did not plan this in the best legal manner. First, he used “SEC Tailgating with Jeb,” which he later modified to remove the “SEC” from the tagline. Then his campaign sold koozie’s with the SEC’s logo but replaced the “SEC” letters with “JEB,” which was quickly taken down hours after the product went live on the site. For more information, check out this USA Today article.
Rick Santorum and Typotheque
In 2012, Raise Digital used the typeface Fedra without it paying for it and they also modified the font. The type foundry, Typotheque, sued Raise Digital for $2 million in damages due to not paying the license and for altering the copyrighted Fedra Serif font. Make sure you read your font licenses to prevent a similar lawsuit with your designs.