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.
Get the opposition picture from the oppostion... Either request publicity stills from their PR people, or shoot one of their posters. Are they gonna say, "we distributed thousands of these pix, but only friendly media organizations can use them???"
Their own key art typically are the shots that work best anyway, because you're turning the tables on them by attributing new meaning to something that people already recognize. The public usually appreciates that as an indicator that your candidate is smart and has smart political strategists on his team. Of course, that can backfire if you're not careful about what you say...
[David Roth Weiss] "Get the opposition picture from the oppostion... Either request publicity stills from their PR people, or shoot one of their posters. Are they gonna say, "we distributed thousands of these pix, but only friendly media organizations can use them???" "
Actually this explains a lot. The images I've seen that I thought were lifted from local media may be those very publicity stills sent to the media and used in campaign posters. Might even add some humor to the ad if one actually shot the poster as it hangs. In my neck of the woods, it's illegal to hang such posters on city owned property (street lamps and such). It would be ironic to shoot a poster hanging in such a location.
Now what about getting video or sound recording to use? One might have to find a way to get a campaign VNR.
[Craig Seeman] "Now what about getting video or sound recording to use? One might have to find a way to get a campaign VNR."
Now you're thinkin'...
Are you the Editor, Shooter or Producer? If you are the producer then this wouldn't apply but when we did (or do) political ads we have the producer bring in all the materials and sign a "hold harmless" document. Basically it states that the client has brought us materials and information to use that he has secured the rights to use and we are acting in good faith they rights were obtained. Such a document is supposed to keep us from being liable, I don't know if it would stand up in court but we have never been sued.
Actually I'd been assistant editor, editor for political spots for many years. Only recently have I started to produce. That's why I ask these questions. I have real world experience as an editor and, given the material I had been handed, in nearly every case i believe the material was NOT generated by the client. Neither I, nor to the best of my knowledge, had any of the clients I have edited for have been sued.
I don't know whether I should base my practices on use material based on my experience (over 20 years) of editing for producers who had their own practices. In that score of years, not one client has ever produced documentation that they had the right to use any of the material. These clients worked the business side with the post houses I staffed so if there any kind of contracts, it was with the post house.
As Dave's post may indicate, it's quite possible the material was generated from publicly distributed PR photos and VNRs by the opposition candidate. I can't say with a certitude but some materials looked like they were "sourced" from newspaper clippings and news segments recorded from TV. At least that was the "nasty/low resolution" look of the material when I was handed the tapes.
Many have said that such hold harmless clauses wouldn't hold up in court. Some would ask for documentation proving the right to use material.
The question I would have is if the material came from "publicly" released PR photos or VNRs (given to the media) does that cover the right for an oppositiion candidate to use the material. If one grants a newspaper or tv outlet the right to use certain material that may/or may not mean that others have a right to use the same material. Certainly copyright holders can grant rights to specific "persons/businesses" use and exclude others from using that material.
[Craig Seeman] "Many have said that such hold harmless clauses wouldn't hold up in court."
Yes, that is true -- they will not hold up in court.
IF a thing is illegal, no one can sign a document that relieves another of culpability should the case be brought to court. All the parties involved in the infraction are culpable.
While I am no attorney, that is what I have been told by attorneys in the past.
In fact, as has been pointed out here over the years, in some cases the "hold harmless document" has actually been used as proof that you knew what you were doing was against the law.
But there is a LOT of latitude when dealing with political figures. They place themselves in the public eye and do so willingly. It's why those totally unflattering pictures of politicians, celebrities, etc., abound and proliferate. It's the photographer/videographer/publisher, etc., that holds the copyright -- the celebrity almost never does.
But again, I am no lawyer and so each case is unique and you may wish to consult an attorney for those cases where you are unsure.
[Ron Lindeboom] "But there is a LOT of latitude when dealing with political figures. They place themselves in the public eye and do so willingly. It's why those totally unflattering pictures of politicians, celebrities, etc., abound and proliferate. It's the photographer/videographer/publisher, etc., that holds the copyright -- the celebrity almost never does."
This is key. Many people may say the opposition candidate won't/can't sue. Often they are not the entity holding the copyright. Imagine the photographer or newspaper holding the copyright of the photo suing. It may be fuzzy in the case of a campaign poster though. The campaign may own it and the poster may be in a public place BUT their right to distribute might not mean you have the right to reuse such image.
In the case of the 2000 Nader/Mastercard spot by Bill Hillsman Northwoods Advertising, Mastercard sued (and lost) because the spot emulated the style. It was filled with clips of Bush and Gore that looked like they were taken from TV coverage.
You'll see other surprising examples though in his spots. In his Wellstone "Under Attack" ad he has scenes from 1950s SciFi movies that I'm sure aren't in the public domain and I can only imagine some wouldn't have granted the rights for any money. In "That Darn Arne" he uses a photo of the opposition candidate.
[Ron Lindeboom] "Each case is unique and you may wish to consult an attorney for those cases where you are unsure."
And as one can see from the above examples there may be no general guide. One mimics the style of a specific corporate spot, another uses scenes from copyrighted movies, still another uses a photo of the oppositiion candidate. I wonder if anyone at the COW has done these kinds of political spots and what did they do to "cover" themselves.
BTW, it's worth looking at his spots in general for his interesting approach.
Having worked many political campaigns, from local mayoral to presidential, I can say anything the opposition says in public is usable for campaign ads. His broadcast spots can be taped off air and used. Any photographs can be used with permission of the photographer.
Any public statements are fair game. They place themselves in the public eye, and as a result, the public right to know laws are in effect.
I should have added, the only real requirement is that your candidate's likeness must be in the spot somewhere, many political campaign advertisers will place it very tiny next to the disclaimer, being tiny keeps it from being usable against you. There is a minimum size but it has been a few years since I did campaigns and forget the exact requirement, I know the disclaimer must be no smaller than 14 scan lines.