We’re coming right up to the election here in America, so it is obviously time for all kinds of intellectual property strife surrounding political campaigns and advocacy groups. We see all kinds of ways these disputes happen, from campaigns making use of music at rallies, to political ads that use music, up to and including the use of other media in political advertisements.
Sometimes these uses are proper and covered by the fair use defense. Other times, such as Trump’s use of “Electric Avenue” in an ad, are not. But if you really want my favorite version of this kind of dispute, it certainly must come in the form of religious on religious combat being done over clips of Billy Graham juxtaposed with clips of Donald Trump being roughly as un-Christ-like as you can possibly be.
See, the Billy Graham Evangelistic Association has threatened to take legal action against the group Evangelicals for Harris, over the latter’s political ad that puts clips form a Billy Graham sermon over 30 years ago with clips of Trump being Trump.
That ad, the result of a $1 million ad campaign by Evangelicals for Harris, is now the subject of a potential lawsuit from the Billy Graham Evangelistic Association, a Charlotte, North Carolina-based nonprofit that supports the ministries of Billy Graham’s son and grandson. In late September and early October, Evangelicals for Harris, a grassroots campaign of the political action committee Evangelicals for America, said it received multiple letters from lawyers representing the association, including a “cease and desist” letter. An Oct. 2 letter, sent from outside counsel and obtained by RNS, threatened to sue Evangelicals for Harris on the basis of copyright infringement.
BGEA claims copyright on those clips and is suggesting that the use of them by Evangelicals for Harris constitutes copyright infringement.
It. Does. Not. It doesn’t for all kinds of reasons, actually, all of which coalesce into the fair use defense. I would normally articulate that defense within this very paragraph, in fact, but the legal team for Evangelicals for Harris has done such a thorough takedown of the claim that you should just go read it for yourself. There is a point by point analysis of the four tests for fair use within that statement, but it also opens with this preamble.
As a formal legal matter, EFH’s limited use of Billy Graham’s speech falls squarely within the fair use protections afforded by Section 107 of the Copyright Act and numerous judicial decisions.[3] EFH is legally entitled to use and comment on the short segments of this speech regardless of your position on the matter. The “Keep Clear” advertisement contains short clips from a speech given by Billy Graham thirty-six years ago. The advertisement uses these clips to comment on Graham’s message and contrast it with the statements and actions of former President Donald Trump. This is a paradigmatic example of fair use, which protects “criticism, comment, [and] news reporting”[4] and provides “breathing space within the confines of copyright.”[5] Importantly, the protections of fair use are “broader when the information relayed involves issues of concern to the public”[6] because the “[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.”[7]
Section 107 provides four enumerated factors to evaluate whether the use of copyrighted material qualifies as fair use. These factors “are to be explored, and the results weighed together, in light of the purposes of copyright.”[8] Each of these factors weigh in favor of EFH and illustrate the strong protection enjoyed by material of this kind. We have set forth a thorough and detailed analysis of these issues below, and there can be no question that EFH’s videos constitute appropriate “fair use.”
And they do a good job of it, too. The work is transformative in nature, changing the clips from what was a religious sermon to one of political commentary during an election cycle. The nature of the work used includes noting that a tiny percentage of the sermon was clipped for this advertisement, while that same sermon is on offer in its entirety for free on the web both from official BGEA channels and through other providers, apparently unmolested by BGEA’s legal team. The amount of the sermon used in the clips is also, again, fractional, serving to not in any way replace the consumption of the sermon in whole. And, finally, as a result of some of the above, nothing about the use in this case diminishes the market for Billy Graham sermons.
In response to the threatened lawsuit, Evangelicals for Harris released a statement saying Franklin Graham is taking a page from Trump’s playbook by trying to silence the group through legal action.
“Franklin is scared of our ads because we do not tell people what to do or think. We merely hold Trump’s own words up to the light of Scripture, the necessity of repentance, and Biblical warnings against leaders exactly like Trump,” they wrote in a post on X.
No lies detected. I am very much the wrong person to get into a conversation about how evangelicals ought to view Donald Trump. I’ll leave that to actual evangelicals to articulate. Clearly, based on this example, they are more than capable of doing so.
But I’m also trying to picture the Nazarene incorrectly wielding something like copyright law to combat the messaging of the Pharisees and, well, somehow I just can’t seem to conjure the image, no matter how hard I try.