Clear eyes, full hearts, can’t lose (the election)

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14 Responses

  1. A.J. Sutter says:

    “Isn’t the ‘fair use’ argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent?” — the same argument could be made about many commercial uses, which would pretty much gut the point of fair use. And as to whether the defense is even available to a campaign, an analogy between commercial use and use in a Presidential campaign ought not to seem far-fetched, considering the huge payoffs involved for the winners — though I’m guessing the Roberts Court would not see things that way.

    “What difference does it make whether the candidate’s use of the song/slogan/character is consistent with its original or intended message?” Isn’t that question missing the point of moral rights? And doesn’t the creator have a moral rights interest here?

  2. Ken Rhodes says:

    Polite and non-confrontational: “That slogan you’re using is from my copywrited TV show. Please stop using it and come up with your own original slogan, or at least one you borrow from somebody else after getting their permission.”

    Still polite, but more assertive: “That slogan you’re using is from my copywrited TV show, which makes it my IP. You do not have my permission to use it. Please stop immediately, so that I do not have to obtain an injunction.”

    Not concerned with politeness: “Attasched find a signed order of the court enjoining you from using my copywrited slogan.”

    Tom Petty didn’t have to “ask” George Bush to stop using “Won’t Back Down.” Petty *told* him to stop, or he’d sue. Apparently, Peter Berg being polite and non-confrontational can spawn conversation like this thread, as exemplified by the throwaway line “putting aside any IP issues…”

  3. That wasn’t a throwaway line; that was an attempt to focus on a specific point. Berg himself didn’t make this about IP; he made it about political message. So that is what I wanted to focus on.

  4. Dr. Graham says:

    Politicians rail against China for thieving our copyrights but will dutifully swipe a slogan from a tv show. I’m sorry but it speaks to the void of originality in our political campaigns.
    Original thought, original solutions or original slogans are too dangerous or too difficult to devise.

  5. mls says:

    If Berg is enforcing his copyright because he does not like Romney’s politics, and would not enforce it against the Obama campaign, should that be considered a campaign contribution?

  6. Shag from Brookline says:

    @ #5: If Berg were not to enforce his copyright against Romney, whether or not Berg likes Romney’s politics, would that be considered a campaign contribution to Romney’s campaign?

  7. mls says:

    Shag- sure, that would work too. So long as copyright holders have to treat all candidates the same.

  8. Shag from Brookline says:

    So a copyright holder could be burdened with the risk of making a possible illegal* political contribution by doing nothing, even if he/she is not aware of the possible infringement of his/her copyright? Or would it be necessary to get into the state of mind of the copyright holder, i.e., which way does he/she lean politically? Is there a general requirement that a copyright holder has to treat all – including political candidates – equally?

    *Putting a dollar value on the copyrighted material used in a political campaign may be difficult.

  9. mls says:

    Hey, no fair, it was your idea! Anyway, my question was theoretical, not practical.

    But if one were concerned about copyright holders being, in effect, large donors to political campaigns, the rule could be that any copyright holder that wanted to restrict political use of the copyright could so specify in advance, and then it would have to be neutrally enforced against all campaigns.

  10. Shag from Brookline says:

    mls’ question was indeed not practical, but it was more political than theoretical. mls raised his idea and I questioned it. Why is that “no fair”?

    I don’t know if mls’ suggested solution could be practical, especially if congressional action were required. Also, there might be income tax ramifications, such as recognition of income that cannot be offset with a political contribution that is not deductible (unless the political contribution is disguised as something deductible).

  11. Howard Wasserman says:

    There is no way this is a campaign contribution, any more than volunteering for one candidate or speaking publicly in support of a candidate is a contribution.

  12. mls says:

    But its not like those things because everyone has (in theory) equal ability to speak or volunteer their time. A copyright is a form of property, which everyone does not have in equal amounts.

    A better analogy would be opening up your home for a fundraiser. I am guessing that, for practical reasons, the FEC doesn’t require the use of the home to be counted as a contribution, though the catering (guessing again) would be. But in theory both should be because they involve using private property for the benefit of a campaign.

    To be clear, I am not suggesting that it would be desirable to apply federal campaign law here. I am just pointing out that the theory underlying campaign finance law seems applicable to this situation.

  13. Shag from Brookline says:

    Here’s a link to a 2004 updated FEC Citizens’ Guide that may (or may not) provide answers on copyrighted material “contributed” to a political campaign as “in kind.”

    The Guide does not address potential income tax issues for such “in kind” contributions.

  14. Joe says:

    It really shouldn’t matter legally but those who control the rights are more likely to make an issue of it when they don’t like how the intellectual property is being used.

    The letter doesn’t look like a cease and desist sort of thing. “Please” is used not “stop or our lawyers will call.” It note Mr. Berg is not “thrilled” etc.

    BTW, Mrs. Coach or rather the actress is now on the show Nashville & (to her displeasure) her singer character’s husband is running for office himself.