Is the Road to the White House Paved with Intellectual Property Lawyers?

The top contenders for the Republican presidential candidate nomination are finding out that the road to the White House might well be an intellectual property minefield.

The current leader, Mitt Romney, is running a television ad that features Tom Brokaw reporting on the 1997 House Ethics Committee decision to penalize then Speaker of the House Newt Gingrich for ethics violations: 

“The ad, entitled ‘History Lesson’, is little more than a short clip of NBC’s Nightly News, reporting that Gingrich was found guilty of ethics violations. Along the bottom, just under Tom Brokaw’s tie, are the words ‘Paid for by Romney for President, Inc. Approved by Mitt Romney.’”

Clear, to the point, on target. But quite possibly copyright infringement: 

“Upon seeing the ad, NBC’s vice president of media law, David N. Sternlicht, shot off a missive to the Romney campaign, demanding that NBC’s copyrighted material be taken out of the ad… NBC and Brokaw are asserting that, in addition to infringing on their copyright, the ad is also a violation of their ‘Right of Publicity’ or perhaps a False Designation of Origin under the Lanham Act.” (IP Dispatches from the Political Front: Mitt Slings Copyrighted Mud at Newt by Foley Hoag LLP - Trademark, Copyright & Unfair Competition) 

Meanwhile, Romney’s main opponent, Newt Gingrich, has run into copyright problems of his own. Gingrich’s use of the song “Eye of the Tiger” on the campaign trail caught the attention of the song’s co-author Frank Sullivan, who recently sued Gingrich for copyright infringement:

“The complaint asserts that Gingrich is ‘sophisticated and knowledgeable’ of federal copyright law, citing Gingrich’s tenure in the U.S. House of Representatives during which the Copyright Act underwent several revisions. As evidence of Gingrich’s further familiarity with copyright laws, Rude Music cites Gingrich’s recent criticism of the Stop Online Piracy Act at the Republican primary debate in South Carolina… In the complaint, Rude Music seeks an injunction and unspecified monetary damages based on Gingrich’s unauthorized public performances of the song.” (Copyright Lessons from the Campaign Trail: Romney, Gingrich and Fair Use by Mintz Levin - Intellectual Property) 

(If that weren’t enough, Gingrich also received a cease and desist order demanding he stop using the song “How Do You Like Me Now” at campaign events, though according to law firm Heenan Blaikie the order isn’t enforceable under US law. See Canadian Copyright and Campaigns - Moral Rights Edition). 

We’re sure to hear more about these disputes as the primary contest heats up. In the meantime, the candidates would do well to remember one thing that isn’t up for debate:

“[I]t is often difficult to distinguish fair use from infringement… There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. As a business, before you use another’s work, ask the author’s permission or seek intellectual property counsel to determine if your potential use is fair or infringing.” (Fair Use FAQs by Sands Anderson PC) 

[Update:] Podcast - Lawyer Says GOP Presidential Candidates Violate Songwriters’ Rights by Bloomberg Law:

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