FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

 )

In the Matter of )

) MUR 7670

Hickenlooper for Colorado, et al. )

 )

STATEMENT OF REASONS OF CHAIRMAN ALLEN J. DICKERSON AND 

COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

This matter concerns allegations that Hickenlooper for Colorado—John Hickenlooper’s 

principal campaign committee in Colorado’s 2020 U.S. Senate election—accepted and failed to 

report an unlawful in-kind contribution by including in one of its advertisements six seconds of 

video footage that had originally appeared in advertising for Hickenlooper’s 2014 campaign for 

governor of Colorado. We joined a unanimous vote to dismiss these allegations.1 However, we 

disagreed with part of the Office of the General Counsel’s (“OGC”) analysis in recommending

dismissal, and this statement explains our reasons for that vote.

I. FACTUAL BACKGROUND

In August 2019, Hickenlooper for Colorado released a 90-second online video

advertisement, titled “Not Done Fighting,” to announce the launch of John Hickenlooper’s

candidacy for U.S. Senate in the 2020 election.

2

“Not Done Fighting” included six seconds of 

footage from two television advertisements (the “Video Footage”) originally produced for

Hickenlooper’s 2014 gubernatorial campaign in Colorado.

3 Hickenlooper’s gubernatorial

committee had previously paid Putnam Partners, LLC as an independent contractor to create the 

two TV ads on its behalf, and Putnam Partners retains the copyright ownership of those ads and 

the Video Footage at issue.

4 After Hickenlooper’s 2014 gubernatorial campaign, Putnam Partners 

continued to make the two ads viewable on its public website. 

The Complaint alleges that Hickenlooper for Colorado violated the Federal Election 

Campaign Act, as amended (the “Act”), and the Commission’s regulations by accepting a 

1 Certification (Sept. 28, 2022), MUR 7670 (Hickenlooper for Colorado, et al.). 

2 First General Counsel’s Report at 3 (Aug. 15, 2022), MUR 7670 (Hickenlooper for Colorado, et al.). 

3

Id. at 3–4. 

4

Id. at 6. 

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2

prohibited and unreported contribution, in the form of the transfer of the Video Footage from 

Hickenlooper’s gubernatorial campaign.5It also alleges that Hickenlooper for Colorado did not 

disclose any disbursements to or in-kind contributions from either Hickenlooper’s gubernatorial 

committee or from Putnam Partners, in violation of the Act’s reporting requirements.

6

The Respondents do not deny that “Not Done Fighting” included the Video Footage “as broll in the launch video.”

7 However, they maintain that use of the Video Footage was permissible 

under the fair use doctrine of copyright law.

8 Hickenlooper for Colorado’s Response argues that, 

because Putnam Partners made Hickenlooper’s gubernatorial campaign ads available to the general 

public through its website, “the snippets or clips have a fair market value of $0, because they are 

available to all for free for ‘fair use.’”9In its Response, Putnam Partners likewise notes that, 

consistent with the principles of fair use, its ordinary “business practice” is not to assert a copyright 

claim when either a client or any other person “uses a small portion of an advertisement it has 

made available on its website in another work.”10

Finally, the Respondents assert that, even if use of the Video Footage did amount to an inkind contribution to Hickenlooper for Colorado, its value is negligible and warrants the 

Commission’s dismissal.11 Respondents contend that the fair market value of the Video Footage

in “Not Done Fighting” was, at most, de minimis, since it made up only six seconds of the 90-

second advertisement, was more than five years old, and “was degraded in quality because it was 

pulled from an Internet copy.”12

II. LEGAL ANALYSIS

The Act defines a “contribution” as “any gift, subscription, loan, advance, or deposit of 

money or anything of value made by any person for the purpose of influencing any election for 

Federal office.”13 Pursuant to the Commission’s regulations, “anything of value” encompasses “all 

in-kind contributions,” including “the provision of any goods or services without charge or at a 

charge that is less than the usual and normal charge for such goods or services.”14 The 

Commission’s regulations also provide that “[t]ransfers of funds or assets from a candidate’s 

5 Complaint at 2–4 (Dec. 13, 2019), MUR 7670 (Hickenlooper for Colorado, et al.). 

6

Id.

7 Response of Hickenlooper for Colorado at 2 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.). 

8 See Response of Hickenlooper for Colorado at 2–3 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, 

et al.); Response of Putnam Partners at 2–3 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.). 

9 Response of Hickenlooper for Colorado at 3 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.).

10 Response of Putnam Partners at 3 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.).

11 Response of Hickenlooper for Colorado at 4 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.); 

Response of Putnam Partners at 4 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.).

12 Response of Hickenlooper for Colorado at 4 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.). 

13 52 U.S.C. § 30101(8)(A)(i); see also 11 C.F.R. § 100.52(a). 

14 11 C.F.R. § 100.52(d)(1). See also 11 C.F.R. § 100.52(d)(2) (defining the “usual and normal charge” for 

goods and services). 

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campaign or account for a nonfederal election to his or her principal campaign committee or other 

authorized committee for a federal election are prohibited,”15 though the Commission has clarified

in guidance materials that the transfer of a state committee’s assets to a federal campaign 

committee is not prohibited if the federal committee pays fair market value, or the “usual and 

normal charge,” for use of the assets.16

While the copyright doctrine of fair use is not explicitly part of the Act or Commission 

regulations, the Commission has recognized comparable principles in connection with the use of 

free, publicly available online materials created by third parties. For instance, in a series of 

advisory opinions, the Commission has determined that corporate entities may provide candidates 

and political committees access to various free (or discounted) digital services, so long as the 

corporation’s service is offered “in the ordinary course of its business and on the same terms and 

conditions on which it was offered to all similarly situated persons in the general public.”17 These 

advisory opinions have clarified that if the “usual and normal charge” for a particular service “is 

always zero,” an in-kind contribution does not result when that service is also provided at no cost 

to federal candidates or committees.18

In this matter, the record before the Commission supports that the Video Footage had no 

more than de minimis fair market value—indeed, it likely had no value at all. The evidence 

indicates that Hickenlooper for Colorado obtained the Video Footage at no cost from Putnam 

Partners’ public website, and that Putnam Partners’ business practice is not to charge a fee or to 

assert its copyright when another person “uses a small portion of an advertisement it has made 

available on its website in another work.”19 Thus, Putnam Partners effectively ascribed no 

monetary value to the Video Footage featured in “Not Done Fighting,” and Hickenlooper for 

Colorado’s use of the Video Footage occurred “on the same terms and conditions on which it was 

offered to all similarly situated persons in the general public”⸺that is, for no cost.

20 Moreover,

the Respondents point out that the Video Footage was more than five years-old at the time it 

appeared in “Not Done Fighting,” and that its quality was “degraded,” further minimizing its 

15 11 C.F.R. § 110.3(d). 

16 See Transfers of Funds from State to Federal Campaigns, 57 Fed. Reg. 36,344, 36,345 (Aug. 12, 1992). 

17 Advisory Op. 2022-14 (Google) at 6. See Advisory Op. 2018-11 (Microsoft) at 3 (“A corporation may 

provide goods and services to political committees without being considered to have made an in-kind contribution so 

long as it does so ‘on the same terms and conditions available to all similarly situated persons in the general public.’”); 

Advisory Op. 2004-06 (Meetup) at 3 (concluding that corporation could provide federal candidates and political 

committees access to free online service for arranging local gatherings without making in-kind contribution because 

the service “is always provided without charge to every person”); Advisory Op. 2019-12 (Area 1 Security, Inc. II) at 

2 (concluding that corporation could offer anti-phishing services to federal candidates and committees under its low 

or no-cost pricing tier “because doing so would be in the ordinary course of [its] business and on terms and conditions 

that apply to similarly situated non-political clients.”). 

18 Advisory Op. 2022-14 (Google) at 6 (quoting Advisory Opinion 2004-06 (Meetup) at 4). 

19 See Response of Putnam Partners at 3 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.). 

20 Advisory Op. 2022-14 (Google) at 6 (quoting Advisory Opinion 2004-06 (Meetup) at 4).

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value.21 Simply put, “this small clip of free and previously used footage likely could not command 

much of a purchase price, if any.”22

In addition, Hickenlooper for Colorado’s incorporation of the Video Footage into a new,

“wholly different” advertisement announcing John Hickenlooper’s 2020 run for U.S. Senate was 

“incidental to the advertisement as a whole.”

23 The Video Footage made up just six seconds of broll in the 90-second-long “Not Done Fighting” video, which “add[ed] its own text, graphics, 

audio, and narration to create its own message” about the launch of John Hickenlooper’s campaign 

for a different office (U.S. Senate), in a different election cycle (2020).

24

Although OGC recommended that the Commission exercise its prosecutorial discretion 

and dismiss this matter, the First General Counsel’s Report (“FGCR”) did not fully engage with

the evidence or arguments that the Video Footage had little or no appreciable fair market value. In

counseling the Commission to dismiss the allegations, OGC observed that “an investigation would 

be necessary” to determine, among other issues, “the appropriate valuation of the Video 

Footage.”

25 Yet, as we have already discussed, it is readily apparent from the existing record in 

this case that the Video Footage had no more than de minimis value, given Putnam Partners’ 

standard practice of permitting the public’s free use of small portions of videos available on its 

website, as well as the Video Footage’s brief and “incidental” inclusion in the “Not Done Fighting” 

video, which conveyed a distinct message from the original 2014 gubernatorial ads. In light of

these facts, an investigation by OGC would be unlikely to uncover any additional information that 

might lead us to the conclusion that the Video Footage did have a significant value.

Similarly, the FGCR elided the Respondents’ invocation of the fair use doctrine as a 

potential defense against the Complaint without duly considering the relevance of that doctrine to 

the market value of the Video Footage and whether it constituted an in-kind contribution.26 We

believe the Commission’s precedents regarding the provision of corporate services offered at no 

charge in the ordinary course of business and on the same terms and conditions as to the general 

public are dispositive in the outcome of this matter, for the reasons set forth above. 

* * *

21 Response of Hickenlooper for Colorado at 4 (Feb. 24, 2020), MUR 7670 (Hickenlooper for Colorado, et al.). 

22 Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioner Caroline C. Hunter at 1 

(Aug. 30, 2019), MUR 6792 (Sean Eldridge, et al.). 

23 Statement of Reasons of Chair Caroline C. Hunter and Commissioners Donald F. McGahn II and Matthew 

S. Petersen at 4 (Feb. 22, 2012), MUR 6357 (American Crossroads, et al.).

24 Id. See also Response of Hickenlooper for Colorado at 2 (Feb. 24, 2020), MUR 7670 (Hickenlooper for 

Colorado, et al.) (noting that Hickenlooper’s “Senate Campaign used clips from Putnam Partners’ publicly available 

website and edited the images, altering the framing of the clips so that they could serve as b-roll in the launch video.”). 

25 First General Counsel’s Report at 12 (Aug. 15, 2022), MUR 7670 (Hickenlooper for Colorado, et al.).

26 See id. at 11 (“[N]othing in the Act or Commission regulations recognizes an exception to the definition of 

contribution based on the fair use doctrine that would apply here, nor does there appear to be any relevant Commission 

precedent creating such an exception.”). 

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We agreed with OGC’s recommended outcome for this matter, but not its reasoning. 

Because we concluded that it was unlikely that any contribution occurred at all, we voted to 

dismiss.

______________________________ November 1, 2022 

Allen Dickerson Date

Chairman 

_________________________________ November 1, 2022 

Sean J. Cooksey Date

Commissioner 

_________________________________ November 1, 2022 

James E. “Trey” Trainor, III Date

Commissioner

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