A Pepsi truck sits on a street in downtown Chicago.Many bloggers and industry analysts
have noted a strong similarity between this logo and President Barack Obama's campaign
logo, questioning whether this is a copyright or trademark issue.Post-Exchange/JAMIE LOO

Pop culture and politicians

Experts say political speech often collides with copyright and trademark laws.

By Jamie Loo, First Amendment reporter

April 6, 2010

CHICAGO—Popular music and borrowing from major product campaigns is common in political advertisements.

The problem is the material isn’t totally protected by the First Amendment because of copyright and trademark law, experts say.

“I actually think there are a lot of lawyers who believe that there is an exemption for use of protected materials under free speech…without really getting into the specifics of what that entails,” Jackie Leimer said.

Leimer, spoke on a panel with Ron Staudt and Richard Renner on the intersection between political speech, copyright and trademark issues at the Chicago Kent-College of Law last week. The three panelists are instructors at the school in trademark and copyright law.

Staudt said copyright and trademark deal with different interests than political speech. Copyright protects people like authors and artists by ensuring they receive compensation and credit for their work. Trademark looks at source, commercial growth, and helps consumers be aware of where their goods and services are coming from.

Political speech is the most highly protected form of speech under the First Amendment, so combining it with copyright and trademark law is a delicate balancing act. The restrictions in those laws can be seen as an infringement on the free flow of information protected by the First Amendment. However without copyright and trademark laws artists end up losing the intellectual property rights to their original work.

Political candidates and music artists frequently become entangled in copyright disputes over music in campaign ads or at rallies. During the 2008 campaign, candidates from both parties used music without some artists’ permission and were asked to stop. John Mellencamp, the Foo Fighters, Van Halen and ABBA, all had music used by Republican presidential nominee Sen. John McCain, without their permission. The ‘70s rock band Heart blasted the Republican party for using their song, “Barracuda” for vice-presidential candidate Sarah Palin at the Republican National Convention. R&B singer Sam Moore asked Democrat Barack Obama to stop using “Hold On, I’m Comin’” at campaign rallies. In 1984, both Mellencamp and Bruce Springsteen rejected requests from Ronald Reagan to use their music in campaign advertisements.

One of the latest examples is Illinois Republican congressional candidate Joe Walsh and the Eagles, a ‘70s rock band. A local artist re-wrote the words to the Eagles song “Walk Away” and made it into a YouTube campaign ad. An Eagles band member, who coincidentally is also named Joe Walsh, had his attorney send candidate Walsh a letter to stop using the video because of copyright infringement. Candidate Walsh claimed that because the artist used a karaoke version of the Eagles song permission had already been granted. They also claimed the video was fair use under the First Amendment. The videos were eventually removed from Walsh’s campaign Web site and YouTube site.

In the context of the Internet, Staudt said music artists can ask to have their work taken off a Web site and some have taken it into the court of public opinion by exposing a candidate’s disregard for the copyright law. Renner said artists can also turn the situation into a marketing tool, particularly artists who haven’t been in the spotlight for decades. Leimer said it appears that the risk of association is what drives many artists to complain, based on their political views. For example, Jackson Browne does not agree with McCain’s political views and filed a lawsuit against the senator for using his song “Running on Empty” during the 2008 presidential campaign.

What’s interesting about situations like the Walsh case, Renner said, is that usually the songs themselves have no political theme or meaning. He said if the music keyed directly into a political message--for example using Woody Guthrie’s “This Land is Your Land” for an environmental conservation campaign--then using the First Amendment as a defense could be reasonable. Staudt said a parody defense could potentially be used however the U.S. Supreme Court has made it clear that if the work itself isn’t being parodied it’s more difficult to for the court to accept it as a defense.

Green Party presidential candidate Ralph Nader used the general theme of the MasterCard’s “priceless” advertising campaign and re-wrote it for his campaign purposes in 2000. MasterCard sued Nader for copyright, dilution, and trademark infringement. In 2004, the court absolved the Nader campaign of any wrongdoing. During this case, Renner said to prove trademark infringement you had to show “actual confusion.” The law changed in 2005 to “likelihood of confusion.”

“So in other words when you heard that spot, you’d have to think, ‘Son of a gun, why is MasterCard sponsoring this guy’” he said.

Renner said a much broader remedy in trademark law called dilution was also raised in the Nader case. Under trademark dilution a party claims their trademark’s distinctiveness has become blurred through improper use. The dilution law has an exception for non-commercial speech, Renner said, which many courts have interpreted to include political speech.

Leimer said at some point plaintiffs in a case like this need to think about whether it’s worth their time and money to litigate, especially if there isn’t an immediate solution that will have an impact. The MasterCard case took four years in court, which was long after the 2000 election. Leimer, who knew one of the attorneys defending MasterCard, said the company’s attorneys felt if the use went unchecked the distinctiveness of the trademark would continue to be blurred. Renner said he finds the decision in the Nader and MasterCard case troubling because political campaigns are all about branding.

“If you can simply take somebody else’s creativity and free ride off of that to get into people’s minds to get their attention that’s going to give you a tremendous leap out there,” he said.

Politicians spend a substantial amount of money to produce campaign advertising, Leimer said, by paying copy writers, hiring ad agencies and on-screen talent. They should also pay for elements such as rights to a song, trademark right or the likeness of a celebrity, she said. Leimer said it’s interesting that with all the money behind these sophisticated productions they are classified as non-commercial speech.

The courts have issued mixed decisions on political speech that takes on a commercial nature such as symbols or slogans used on campaign merchandise. In 1986, Mutual of Omaha sued activist Franklyn Novak who took the insurance company’s trademarked symbol and re-purposed it for an anti-nuclear war campaign. Novak took the symbol and used it on clothing, coffee mugs and other objects. A U.S. district court judge ruled in favor of Mutual of Omaha finding that Novak committed copyright infringement. Renner said the court didn’t find Novak’s First Amendment claim of fair use to be sufficient because Novak had plenty of other editorial opportunities to make his arguments about nuclear war. The court focused their decision on the commercial aspect of the case. Renner said other courts don’t treat political speech and merchandise separately and see things such as campaign T-shirts as another vehicle for political free expression.

“All of the trademark questions always come down to what you -- as consumers-- understand to be going on,” Renner said.