Political advertising on social media: sludge or copyright quagmire?

New Zealand has an election next month, so local social media users are being inundated with sponsored posts from the major political parties highlighting new policies – or attacking the opposition. Many voters will just scroll past a post of a “generic” politician talking about taxes or how great they are/terrible the other lot is.

But add a popular meme to your post and maybe, just maybe, you’ll get some engagement. And recently there has been a big increase in political parties doing just that.

However, some posts suggest that parties on both sides of the political spectrum think that US-style “fair use” laws apply in this country, or that – in the infamous words of Steven Joyce – it’s all “pretty legal” when it comes to content posted online.

In reality New Zealand has a more restrictive “fair dealing” framework, and a number of political parties are likely to be flouting copyright.

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What’s been happening?

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At least two New Zealand parties – National (a centre right party currently leading the opposition) and the Green Party (a left leaning party focused on climate and social issues) – have been utilising popular memes and TikTok trends to try to capture voters’ attention.

The Green Party has posted memes on both Instagram and TikTok using stills from the recently released “Barbie” movie to criticise the two major parties (Labour and National) and their positions on everything from social welfare to justice and taxes. Using stills from a film will infringe copyright without a licence from the film’s owner, which in this case is Warner Bros. A Green Party spokesperson confirmed that the party had not sought permission from Warner Bros., so was infringing copyright. This quickly became the focus of local media coverage.

Meanwhile, the National Party is capitalising on the popular TikTok trend of “sludge content”. This involves playing two videos side-by-side that are completely unrelated. The intended "real" content is played alongside some form of distraction: such as someone chopping into kinetic sand, gameplay of mobile game "Subway Surfers" or someone playing with slime. The goal is to keep viewers watching content for longer – if a viewer gets bored with one video, they might just turn their attention to the other.

Sludge content is also an easy, and popular way, to use edited, clipped and cropped videos to circumvent TikTok’s copyright filters, with much of the sludge content on the app involving parts of popular TV shows playing next to these ASMR (autonomous sensory meridian response) videos.

The National Party’s sludge content involves clips of their politicians discussing policy issues typically paired with kinetic sand videos. The potential issue with National’s use of sludge content is the origin of these secondary ASMR videos. A National spokesperson stated the secondary videos are “a mixture of our own content and user-generated [content] widely used on social media”.

User-generated content, as the name suggests, is content created or generated by social media users. It is generally either content a user has simply created and posted, or content created by users that they sell to brands for promotional use.

If National is using paid user-generated content, then it’s unlikely the party is infringing any copyright. However, in the absence of any clarity, there’s a real risk the National Party is simply taking ASMR content produced by social media users, without a licence. If so, the National Party will be infringing copyright … again.

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“Fair dealing” is not the same as “fair use”

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The actions of parties on both sides of the political spectrum suggest their social media coordinators might not understand that New Zealand’s “fair dealing” rules are much narrower than US “fair use” laws.

The US "fair use" doctrine allows for the relatively broad unlicensed use of copyrighted works, having regard to four factors:

• Whether the use is commercial

• Whether the material has been published

• How much material has been used

• The effect on the potential market.

Memes are generally made for entertainment purposes using a small amount of well-known, published material (such as one or two stills from a film or TV show) and rarely affect the sales of the original work. As such, memes like those used by the Green Party would likely fall under the US "fair use" doctrine, which would provide a defence to allegations of copyright infringement in that country.

In contrast, sections 42 and 43 of New Zealand’s Copyright Act 1994 provide for a much more limited “fair dealing” framework, only allowing unlicensed use for the purposes of criticism and review, news reporting and/or research and private study.

The use of memes by the Green Party for political purposes is not “fair dealing” in New Zealand, and it appears that the party has come to the realisation that its “Barbie” memes are indeed infringing copyright. The party has now removed the memes, citing the need to “protect Warner Bros’ intellectual property”. The Greens refuse to reveal whether the U-turn is the result of any request from Warner Bros.

Often the practical risk of infringement proceedings for memes is (quite) low, but this is certainly not the case where businesses are involved. Warner Bros. is unlikely to want to be seen to be politically aligned or to have its material used for such an overt political statement. And of course, politically, it’s not a good look for a party to be infringing intellectual property rights.

Copyright infringement in political advertising is nothing new. In 2017, National was caught up in the ‘Eminemesque’ saga when it was ultimately found to have infringed copyright in Eminem’s song "Lose Yourself" during the 2014 election campaign. National was ordered to pay $225,000 in damages by the Court of Appeal in 2018. You’d hope National has learned its lesson and has obtained the requisite rights to use the user-generated "sludge content". However, in the absence of any clarity from National, questions will remain.

Notwithstanding such a recent – and public – case of copyright infringement, it seems that some political parties still don’t appear to have appropriate advertising approval processes in place.

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Golden rules for your social media posts

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Advertising on social media is a copyright minefield, and a lack of enforcement action by some copyright owners doesn’t mean you’re not at risk (especially where businesses are involved).

So, if you’re advertising on social media, here are some “golden rules” to consider:

• Make sure you have a clear social media policy for posts (on business accounts) and hold people to it.
• Only post original content you have created.
• If you are using/posting another user’s content (images, videos, music etc.) it’s very likely copyright will ‘subsist’ in it.
• If so, you will need to get their permission to use/post it (and you may need a licence if you are commercially using it).
• If you are reposting, tagging the author may not be enough – you will need to ensure you give them proper credit.
• When using music in TikTok videos, ensure that the music is licensed by the app (helpfully TikTok business accounts restrict the music the account can use to music and sounds TikTok already has a licence for).

As users become more aware of the value of their content, we expect that the enforcement of copyright online will increase. If you have any questions or need advice on the use of digital content, please get in touch.

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