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Copyright of Political Speeches

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In the United States, with little exception, copyright protection is not available for any work of the United States government.[1] The question arises, especially during political campaign seasons, whether a speech that is written by a candidate who is also a United States government officer or employee is protected by copyright.

QUESTIONSEdit

  1. Are political candidates’ campaign speeches protected by copyright even if they are written by officers or employees of the United States government?
  2. Are last minute, scribbled notes jotted down on a written speech prior to a speech’s performance protected by copyright?
  3. Are a speaker’s off-the-cuff remarks or unprepared responses to questions presented during the performance of a written speech protected by the author of the written speech’s copyright?

DISCUSSIONEdit

Political campaign speeches written by officers or employees of the United States government (or at their request)[2]Edit

Under section 105 of the Copyright Act, copyright protection is not generally available for any work of the United States government.[3] A work of the United States government is defined as "a work prepared by an officer or employee of the United States Government as part of that person's official duties."[4] Whether political campaign speeches written by federal officers or employees are subject to copyright protection would therefore hinge on whether the speeches were prepared within the scope of the candidate’s official duties. There is very little law regarding this issue, but relevant caselaw, legislative history, and commentary indicate that political campaign speeches are usually not prepared within the scope of a government officer’s or employee’s official duties and therefore do receive copyright protection.

There is no case directly on point, but the case most factually similar is Public Affairs Associates, Inc. v. Rickover.[5] In Public Affairs Associates, Vice Admiral Hyman Rickover asserted a copyright interest in two speeches, one of which concerned an experimental atomic power station for which he had technical responsibilities. The court presented the following question: “May a Government employee who prepares and delivers a speech on his own time, on a subject relating to or bearing directly on his employment, claim a proprietary interest in that speech and copyright it as a protection against its unauthorized use?”[6] The fundamental determination, the court reasoned, was whether the disputed speeches fell within the purview of Admiral Rickover's official duties.[7] The court found that the preparation and delivery of the speeches was done outside of working time and made in response to a direct invitation to Admiral Rickover as a private individual.[8] Although the final drafts were typed and reproduced by government personnel using government material and time and, in the case of one of the speeches, also served an official purpose, the subject matter of both speeches was far enough removed from the author's official duties. This combination of factors caused the court to hold that the speeches had copyright protection. [9]

In United States v. First Trust Company,[10] the issue was the ownership of certain notes prepared by Lieutenant William Clark during the Lewis and Clark expedition. The court determined that the copyright ownership turned on whether Lieutenant Clark's notes were written records of a government officer that were executed in the discharge of his official duties.[11] The court concluded that the notes were the private and personal writings of Lieutenant Clark, unofficial in character, and not the work product of a government representative engaged in the performance of his duties. [12]

The legislative history of section 105 further supports the position that political campaign speeches of United States officers or employees are not excluded from copyright protection. “[A] Government official or employee would not be prevented from securing copyright in a work written at that person's own volition and outside his or her duties, even though the subject matter involves the Government work or professional field of the official or employee.”[13]

The Copyright Working Group for CENDI, a membership organization that serves the federal information community, provides the following commentary regarding section 105 on their website: "An officer's or employee's official duties are the duties assigned to the individual as a result of employment. Generally, official duties would be described in a position description and include other incidental duties. Official duties do not include work done at a government officer's or employee's own volition, even if the subject matter is government work, so long as the work was not required as part of the individual's official duty. [Citations omitted.]"[14][15] A speech prepared by a senator for an audience of his constituents that concerned his duties as a senator, therefore, would reasonably be subject to the government exclusion. A presidential campaign speech prepared by him in preparation for a presidential debate, however, would probably not. [16]

The copyright status of last minute, scribbled notes jotted down on a written and prepared speech prior to a speech’s performanceEdit

There is no difference between the copyright protection granted a written, prepared speech and the last minute, scribbled notes jotted down on the copy of the speech prior to its performance. A work must be “fixed in a tangible means of expression” to be protected by copyright,[17] but a work is “fixed” when [it] is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[18] There appears to be no doubt, therefore, that even the scribbled down, last minute additions on a written speech are “fixed” enough to satisfy the fixation requirement and, provided the work meets the other requirements for copyrightability, are protected by copyright.

There is a question about who would own the scribbles. For example, where a speech might be owned by the campaign or by a ghostwriter, the scribbles would be owned by whomever made them, most likely the politician.

The copyright status of a speaker’s off-the-cuff remarks or unprepared responses to questions presented during the performance of a written speechEdit

If a speaker’s remarks or responses to questions presented during a speech were not written down or “fixed” in some manner, they would not be protected by the written speech’s copyright. As explained above, a work is fixed when it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[19] “[S]ubsequently created … materials are protected against copying, but not extemporaneously spoken words upon which they were based.” [20]

It is important to point out, however, that although off-the-cuff remarks would not be part of the copyright in the written speech itself, they would be part of the copyright in the performance, assuming the performance was recorded or transcribed. This would mean, for example, that while anyone could publish the words, a clip of the person speaking those words taken from a news broadcast would typically be owned by the news company and would require permission from that company. [21]

ConclusionEdit

In summary:

  1. Political candidates’ campaign speeches are generally protected by copyright even if they are written by officers or employees of the United States government because the speeches are not likely to have been prepared within the scope of a candidate’s official duties and would therefore not fall within the exclusion for works of the United States government.
  2. Last minute notes jotted down on a written speech prior to its performance are usually protected by copyright, provided they meet the other requirements of copyrightability, because the notes are sufficiently “fixed,” and permanent enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
  3. A speaker’s off-the-cuff remarks or unprepared responses to questions presented during the performance of a speech are not protected by the written speech’s copyright because they are not sufficiently fixed in a tangible medium. (They would be protected, however, by the copyright in the performance of the speech, assuming the performance was recorded or transcribed.)

REFERENCESEdit

  1. 17 U.S.C. § 105.
  2. Typically, a speechwriter's work is a work for hire if that speechwriter is an employee of the campaign, but there may be cases where the writer is independent and therefore the writer, rather than the candidate or the campaign, owns the copyright in the speech.
  3. 17 U.S.C. § 105.
  4. 17 U.S.C. § 101.
  5. 268 F. Supp. 444 (D.D.C. 1967).
  6. Id. at 448.
  7. Id.
  8. Id. at 448, 449.
  9. Id. at 449, 450.
  10. 251 F.2d 686 (8th Cir. 1958).
  11. Id.
  12. Id.
  13. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 59 (1976), U.S.Code Cong. & Admin.News, 1976, pp. 5659, 5672; http://www.copyright.gov/history/law/clrev_94-1476.pdf, p. 58.
  14. Frequently Asked Questions About Copyright, Cendi Copyright Working Group, Ed. Bonnie Klein and Gail Hodge, Cendi Secretariat, 8 Oct. 2008. Web. 02 Feb. 2016.
  15. For further commentary see John O. Tresansky, Copyright in Government Employee Authored Works, 30 Cath. U. L. Rev. 605 (1981), (“In sum, neither the case law nor the legislative history of the statutory prohibition of a copyright in works authored by government personnel warrants a broad interpretation of section 105. To interpret this provision more broadly than is clearly required to carry out its underlying public purpose would unnecessarily vitiate the government officer's and employee's incentive to intellectual creativity provided by Congress in the Copyright Law pursuant to the intent of the framers of the Constitution.” Id. at 620.
  16. See also Scheid, Maria, Copyright in Campaigns, Ohio State University Libraries, 30 Sept. 2015, Web. 2 Feb. 2016.
  17. 17 U.S. Code § 102(a).
  18. 17 U.S. Code § 101.
  19. 17 U.S. Code § 102(a).
  20. Fritz v. Arthur Little, Inc, 944 F. Supp. 95, 100 (D. Mass. 1996).
  21. Political campaign speeches might also be subject to a fair use defense, but that analysis is outside the scope of this discussion. See Wikilegal/Primer on U.S. Fair Use/Copyright Law for Website