The Intersection of Intellectual Property and Elections in the United States by Vivek Jayaram

Intellectual property law occasionally strays into the vivid and volatile world of electoral politics. This collision is never dull, sometimes comedic, often contentious, and invariably significant.

Take, for instance, a recent incident when Elon Musk shared an AI-generated video that manipulated Vice President Kamala Harris’ voice to make it seem like she was calling President Biden senile and stating that her own candidacy is the result of DEI policies. The ensuing controversy underscored the vital role of IP laws in maintaining the integrity of political discourse.

In the realm of deepfakes, where the digital fabrication of reality can be pretty convincing, Musk’s video could be viewed as defamatory. The AI technology altered Harris’s voice, making her say things she never said. Moreover, in a highly charged political context, sharing this video without making its provenance clear could be a dangerous dissemination of misinformation.

Is this illegal?

Well, it depends. If a reasonable viewer would not know that Musk intended this as a joke (did he, though, really?), then it could be defamatory. On the other hand, Musk would most likely say that he’s known to be a merry prankster, posting material that any reasonable person would understand wasn’t meant to be taken seriously. 

In a year where more than 100 countries — including the U.S. — have or will hold elections, the world is watching to see what role AI plays in a volatile global political environment.

AI advancements aside, this isn’t a new phenomenon. The intersection of IP and elections has a rich, if somewhat checkered, history. From cybersquatting in the early days of the internet to high-profile lawsuits over campaign logos and slogans, IP issues have long been a battleground in the political arena.

Bush v. Gore:
The Cybersquatting Saga

The 2000 presidential election between George W. Bush and Al Gore was a pivotal moment in many respects, not least in the realm of digital IP law. As the internet emerged as a meaningful campaign tool for maybe the first time ever (the 1996 election was still a very nascent internet), cybersquatting — registering domain names with the intent to sell them at a profit — became rampant. Both campaigns found themselves grappling with opportunists who had registered domains like bushsucks.com and gore2000.com, which were often used to either mock the candidates or hold the domain names for ransom.

The Bush and Gore campaigns took legal action to reclaim these domains, arguing that the cybersquatters were infringing on their trademarks and creating confusion among voters. The Congressionally passed Anticybersquatting Consumer Protection Act (ACPA) of 1999 provided a legal framework for addressing these issues, allowing the campaigns to pursue legal remedies. This saga underscored the need for clear regulations to protect political campaigns from digital exploitation.

Although both campaigns were able to recover most of the domains at issue, it was a major distraction in an election remembered for controversial hanging and dimpled chads. 

The Obama “Hope” Poster:
Shepard Fairey’s Artistic License

Eight years later, during the 2008 presidential campaign of Barack Obama, art and politics collided in a particularly memorable way. Shepard Fairey, a street artist known for his bold, graphic style, created the now-iconic “Hope” poster featuring an image of then-candidate Obama. The image became a symbol of the campaign and was widely disseminated across various media. However, the photo Fairey used as the basis for his design was originally taken by an Associated Press (AP) photographer.

The AP sued Fairey for copyright infringement, asserting that he used the photo without permission. Fairey, on the other hand, argued that his poster was a transformative work protected under the fair use doctrine. The legal battle that ensued highlighted the tension between artistic expression and copyright protection.

Things heated up when it was revealed that Fairey actually destroyed key evidence regarding the source of the image, a fact that didn’t help his cause with the public or the media. Eventually, the case was settled out of court, with Fairey agreeing to share some rights to the image with the AP. The case gained new relevance last year when the Supreme Court ruled in favor of photographer Lynn Goldsmith in a somewhat similar copyright dispute with the Andy Warhol Estate. Nowadays, post-Warhol, photographers seem to have a sharper sword to enforce their copyright against artists seeking to make new versions of their images. 

Trump’s Unlicensed Use of Music

Then there’s Donald Trump, a man with more than his share of brushes with IP law. Throughout his campaigns, Trump has repeatedly used songs without securing the necessary licenses, much to the chagrin of various artists. Aerosmith’s Steven Tyler, Queen, and The Rolling Stones, among others, have sent cease-and-desist letters demanding that Trump stop using their music at rallies.

The issue here is straightforward: copyright law requires that anyone using a song in a public setting, especially for commercial or political purposes, must obtain a license.

The artists argued that the unauthorized use of their music implied an endorsement they did not consent to, thus infringing on their IP rights as creators. 

But most of those cases went nowhere. Most public venues where Presidential candidates hold rallies and speeches (and play famous songs) have licenses granting them the right to play any one of millions of songs during events. So whether it’s a basketball game, Taylor Swift concert, or political rally, these venues are typically allowed to pull from these catalogs. 

Because of Trump, however, many artists have negotiated political events out of their performing rights licenses, so that venues can only play their songs during non-political events.

Beyoncé’s “Freedom” and Kamala Harris

On the other hand, some campaigns have gone to great lengths to secure the rights to music, ensuring that the artists are fairly compensated and — critically — supportive of the candidate’s overall message.

This summer, Beyoncé licensed her song “Freedom” for use by Kamala Harris during her Presidential campaign. This collaboration was more than just a legal agreement; it was a powerful cultural moment that underscored the importance of aligning political messages with artistic expression.

The licensing of “Freedom” was meticulously negotiated, ensuring that the use of Beyoncé’s intellectual property respected her rights and artistic vision. This stands in stark contrast to the unauthorized uses that have sparked so much controversy, showing that when done correctly, the intersection of IP and politics can amplify important messages and foster positive cultural impact.

The Future of IP and Elections

As technology continues to evolve, IP’s role in elections will only become more complex. The rise of AI, deepfake technology, and digital platforms means that candidates and campaigns must be increasingly vigilant about protecting their intellectual property and respecting the rights of others.

In the future, we may see more comprehensive regulations aimed at addressing these challenges. This could include stricter enforcement of existing laws, the development of new legal frameworks to handle emerging technologies, and greater collaboration between political entities and IP experts.

Note: This article was written prior to the 2024 U.S. presidential election.