Political Ads: Use of Opposition likeness

Craig Seeman · September 9th, 2005, 09:37 AM

I've done political spots for local candidates but have always gone "positive."

I may have to do a "comparision" or "negative" spot for a candidate which brings up some legal questions.

Acquiring image, video, audio of opposition candidate:
I would think the legally safest thing to do is use your own camera people to video the opposition candidate at a public event. Sometimes though, that can be difficult because the camera person isn't credentialed from a news organization and they'll find a way to bar them from taping.

I've seen spots where I believe they lifted images from print (local newspaper) or TV and altered it severley. I'm sure this is violation of copywrite but how are they getting away with this. Even with alterations, I suspect the copywrite holder (especially if it's a photo from a daily paper) can spot this. There are other cases when it's just an audio recording which is much harder to identify.

Accuracy of statements in such ads:
This is a big can of worms I've seen handled many ways. Attributing the source of statistics (and does one always need their permission for such statistics?). Lawsuits by "victimized" candidates, etc. Is there a legally "safe" way to present this information? When does "information" become protected speech?

Opposition is incumbent or just another candidate:
The incumbent is clearly a public figure. What about another candidate who does not/has not held public office? Can there be different legal issues in how such an ad can be done.

I know going negative "ain't nice" but in some cases a candidate feels they must point out potentially strong negatives that the public may be unaware of so I don't want this to degenerate into an ethics discussion. I'm looking for information on how one produces such a spot with low/no legal risks.

Paul Tauger · September 9th, 2005, 11:34 AM

I can't give legal advice to non-clients, so I can't address the specifics of your post. I have written, fairly recently, on some of the concerns in using likenesses without authorization. Note that _any_ political candidate is a public figure.

Barry Gribble · September 9th, 2005, 11:39 AM

Depending on what scale of politics you are looking at, wire services may have images and videos that you can license. Otherwise, you can license from local media.

Jay Gladwell · September 9th, 2005, 01:14 PM

Craig, surely your candidate has legal counsel to deal with such issues?

Jay

Craig Seeman · September 9th, 2005, 09:21 PM

Jay, The candidate I usually work with are running for very local offices. Town Board, Town Council type races. The lawyers they work with usually involve election law and/or campaign finance. Not all lawyers have the same area of expertise. Again, my own experience is producing "positive" spots so I haven't run into this issue before.

Paul, ultimately specifics (which I avoid stating) would be reviewed by a lawyer. That's why I speak in the broadest general terms. What I seek is not answers (or even detailed risk assesment) since that's what one pays a lawyer for, but ideas/concepts one needs to know about to discuss them intelligently with a lawyer. Can you point me to the thread on using likenesses? Do you have thoughts on presentation of "facts" and "opinions?" Are there different standards in political advertsing as opposed to a product or service? I also know that some states handle this differently. Attribution of such information can be handled differently on state vs. federal level too.

BTW even "positive" spots can result in legal disputes. Note the Nader 2000 "Mastercard" spot by Bill Hillsman.

I'll mention that I have worked as an assistant on a few Congressional and Senatorial races. I don't want to get specific but let's say I'm surprised at what they did. I suspect my questions are influenced by those experiences.

Just wondering what some of your thoughts are on the original post.

Craig Seeman · September 9th, 2005, 09:35 PM

Barry, you mention licensing images from wire services or local media. Have you found a reluctance from various media outlets to license such images for political campaigns?

In the local races I deal with it would be local media outlets. Those outlets may respond based on their political bias and certainly the personnel at such outlet may notify opposition.

It may be easier to get one's own video camera / photographer in to an event.

Craig Seeman · September 12th, 2005, 04:39 PM

Taboo subject?

I did get an interesting response on another forum. They suggested geting the opposition PR photos/press kit and or using a campaign poster that is publicly displayed. For video they suggested trying to get any opposition VNRs.

Barry Gribble · September 12th, 2005, 06:48 PM

Craig,

I haven't made any political ads myself, so I have no advice on response. I doub the media outlets would politicize the licensing process, but you never know until you try.

Peter Wiley · September 12th, 2005, 08:16 PM

Craig,

Some library near you is going to have a collection of Campaigns and Elections magazine. Search back issues. C&E has undoubtedly done some kind of article on this topic. You can also try the C&E web site: http://www.campaignline.com/index.cfm. They have an annual resource guide issue in which you can find listings of many, many lawyers who can answer your specific questions.

I have been involved in campaigns for a number of years. The best idea is to get one's own footage of the opposition. This is one reason why campaigns tightly control access to events if they can.

I have never heard of a newspaper complaining about repeating what they reported in their paper if the representation is truthful. Of course no campaign in its right mind would distort newspaper reporting (too much) -- newspapers have resources to make a candidate's life miserable, not to mention what the opposition can do with such a mistake.

The use of copy-righted elements of papers (like the masthead) is avoided. It is easy enough to create graphics of newspaper articles that are suggestive of a given paper without being taken from the paper. Use of out and out endorsements from a paper are another story. I have not heard of papers complaining about campaigns' use of their endorsements.

Politics is generally more important here than legal decorum. A candidate who is going to complain about what picture of him/her is used in an ad or what attacks are made did not think carefully enough before he/she decided to run. The only effective political recourse an opponent has is to rebut the attack effectively and such rebuttals rarely begin "how dare they make me look bad!" If they think suing for copyright infringement will help, you have won the race.

Craig Seeman · September 12th, 2005, 10:06 PM

Peter, Thanks for the info and the reminder about C&E. I was a free subscriber for years. Never thought of checking their website for past articles.

Actually not worried as much about opposition candidate suing but the media outlet. Clips from a televised news conference or debate are "copyrighted" by the respective media outlets. Photos taken from a newspaper (using their photographer) are "copyrighted" by the paper.

Barry, my experience in local races is that the media is often politically connected. If your spending your ad dollars with them they might be a little forgiving but I don't think that's a safe line to walk in some cases. We've created pull quotes in print from newpaper articles but never photos.

September 9th, 2005, 09:37 AM	#1
Craig Seeman Inner Circle Join Date: Feb 2004 Location: Brooklyn, NY, USA Posts: 3,841	Political Ads: Use of Opposition likeness - Legalities I've done political spots for local candidates but have always gone "positive." I may have to do a "comparision" or "negative" spot for a candidate which brings up some legal questions. Acquiring image, video, audio of opposition candidate: I would think the legally safest thing to do is use your own camera people to video the opposition candidate at a public event. Sometimes though, that can be difficult because the camera person isn't credentialed from a news organization and they'll find a way to bar them from taping. I've seen spots where I believe they lifted images from print (local newspaper) or TV and altered it severley. I'm sure this is violation of copywrite but how are they getting away with this. Even with alterations, I suspect the copywrite holder (especially if it's a photo from a daily paper) can spot this. There are other cases when it's just an audio recording which is much harder to identify. Accuracy of statements in such ads: This is a big can of worms I've seen handled many ways. Attributing the source of statistics (and does one always need their permission for such statistics?). Lawsuits by "victimized" candidates, etc. Is there a legally "safe" way to present this information? When does "information" become protected speech? Opposition is incumbent or just another candidate: The incumbent is clearly a public figure. What about another candidate who does not/has not held public office? Can there be different legal issues in how such an ad can be done. I know going negative "ain't nice" but in some cases a candidate feels they must point out potentially strong negatives that the public may be unaware of so I don't want this to degenerate into an ethics discussion. I'm looking for information on how one produces such a spot with low/no legal risks.

September 9th, 2005, 11:39 AM	#3
Barry Gribble Major Player Join Date: Aug 2003 Location: Los Angeles, CA Posts: 817	Depending on what scale of politics you are looking at, wire services may have images and videos that you can license. Otherwise, you can license from local media. __________________ Barry Gribble Integral Arts, IMDB

September 12th, 2005, 06:48 PM	#8
Barry Gribble Major Player Join Date: Aug 2003 Location: Los Angeles, CA Posts: 817	Craig, I haven't made any political ads myself, so I have no advice on response. I doub the media outlets would politicize the licensing process, but you never know until you try. __________________ Barry Gribble Integral Arts, IMDB

September 9th, 2005, 11:34 AM	#2
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	I can't give legal advice to non-clients, so I can't address the specifics of your post. I have written, fairly recently, on some of the concerns in using likenesses without authorization. Note that _any_ political candidate is a public figure.

September 9th, 2005, 01:14 PM	#4
Jay Gladwell Join Date: Jul 2002 Posts: 1,244	Craig, surely your candidate has legal counsel to deal with such issues? Jay

September 9th, 2005, 09:21 PM	#5
Craig Seeman Inner Circle Join Date: Feb 2004 Location: Brooklyn, NY, USA Posts: 3,841	Jay, The candidate I usually work with are running for very local offices. Town Board, Town Council type races. The lawyers they work with usually involve election law and/or campaign finance. Not all lawyers have the same area of expertise. Again, my own experience is producing "positive" spots so I haven't run into this issue before. Paul, ultimately specifics (which I avoid stating) would be reviewed by a lawyer. That's why I speak in the broadest general terms. What I seek is not answers (or even detailed risk assesment) since that's what one pays a lawyer for, but ideas/concepts one needs to know about to discuss them intelligently with a lawyer. Can you point me to the thread on using likenesses? Do you have thoughts on presentation of "facts" and "opinions?" Are there different standards in political advertsing as opposed to a product or service? I also know that some states handle this differently. Attribution of such information can be handled differently on state vs. federal level too. BTW even "positive" spots can result in legal disputes. Note the Nader 2000 "Mastercard" spot by Bill Hillsman. I'll mention that I have worked as an assistant on a few Congressional and Senatorial races. I don't want to get specific but let's say I'm surprised at what they did. I suspect my questions are influenced by those experiences. Just wondering what some of your thoughts are on the original post.

September 9th, 2005, 09:35 PM	#6
Craig Seeman Inner Circle Join Date: Feb 2004 Location: Brooklyn, NY, USA Posts: 3,841	Barry, you mention licensing images from wire services or local media. Have you found a reluctance from various media outlets to license such images for political campaigns? In the local races I deal with it would be local media outlets. Those outlets may respond based on their political bias and certainly the personnel at such outlet may notify opposition. It may be easier to get one's own video camera / photographer in to an event.

September 12th, 2005, 04:39 PM	#7
Craig Seeman Inner Circle Join Date: Feb 2004 Location: Brooklyn, NY, USA Posts: 3,841	Taboo subject? I did get an interesting response on another forum. They suggested geting the opposition PR photos/press kit and or using a campaign poster that is publicly displayed. For video they suggested trying to get any opposition VNRs.

September 12th, 2005, 08:16 PM	#9
Peter Wiley Major Player Join Date: Apr 2002 Location: Lewisburg PA Posts: 752	Craig, Some library near you is going to have a collection of Campaigns and Elections magazine. Search back issues. C&E has undoubtedly done some kind of article on this topic. You can also try the C&E web site: http://www.campaignline.com/index.cfm. They have an annual resource guide issue in which you can find listings of many, many lawyers who can answer your specific questions. I have been involved in campaigns for a number of years. The best idea is to get one's own footage of the opposition. This is one reason why campaigns tightly control access to events if they can. I have never heard of a newspaper complaining about repeating what they reported in their paper if the representation is truthful. Of course no campaign in its right mind would distort newspaper reporting (too much) -- newspapers have resources to make a candidate's life miserable, not to mention what the opposition can do with such a mistake. The use of copy-righted elements of papers (like the masthead) is avoided. It is easy enough to create graphics of newspaper articles that are suggestive of a given paper without being taken from the paper. Use of out and out endorsements from a paper are another story. I have not heard of papers complaining about campaigns' use of their endorsements. Politics is generally more important here than legal decorum. A candidate who is going to complain about what picture of him/her is used in an ad or what attacks are made did not think carefully enough before he/she decided to run. The only effective political recourse an opponent has is to rebut the attack effectively and such rebuttals rarely begin "how dare they make me look bad!" If they think suing for copyright infringement will help, you have won the race.

September 12th, 2005, 10:06 PM	#10
Craig Seeman Inner Circle Join Date: Feb 2004 Location: Brooklyn, NY, USA Posts: 3,841	Peter, Thanks for the info and the reminder about C&E. I was a free subscriber for years. Never thought of checking their website for past articles. Actually not worried as much about opposition candidate suing but the media outlet. Clips from a televised news conference or debate are "copyrighted" by the respective media outlets. Photos taken from a newspaper (using their photographer) are "copyrighted" by the paper. Barry, my experience in local races is that the media is often politically connected. If your spending your ad dollars with them they might be a little forgiving but I don't think that's a safe line to walk in some cases. We've created pull quotes in print from newpaper articles but never photos.