Tales of the Sausage Factory: A Good Copyright Decision . . . Priceless

As some of you may recall, in 2000, Ralph Nader ran an ad as part of his Green Party candidacy for President satirizing the Mastercard ads. Mastercard sued for trademark and copyright infringement.

As one can see, the wheels of justice grind rather slowly. But occassionaly they come out right. A good decision on copyright and trademark . . . which proves a point I’ve long been saying on the impact of footnote 14 of _Accuff Rose_ on copyright analysis (how’s that for lawyer geek speak!) A copy of the decision is here. A bit of analysis below.

Back in 2000, Ralph Nader ran as the Green Party candidate for President. Since neither the Republicans nor Democrats particularly like third parties, and since Nader had about as much chance of winning as my cat does in 2004 (Quantum for President: Beause We Need Gray and White Fur in the Licoln Bed Room), Nader did not get invited to any of the debates.

Nader, of course, did not take this loser status lying down. He advertised it to the world. In doing so, he parodied the Mastercard “Priceless Ads.” You know, the ones that show you can achieve spirtuality through greater consumerism with things like “Trojan, $1, hotel room in Vegas, $399/night, blow job, $100, post-coital lassitude, priceless.” The Nader ads went something like “Political fundraiser, $1,000/plate, special interest promises, $100 Billion, The Truth, Priceless” and urged citizens to demand Nader’s presence in the 2000 Bush/Gore presidential debates.

Mastercard, in an obvious effort to boost Nader’s campaign by demonstrating that evil multinational corps have no sense of humor and seek to squelch political speech, sued Nader for various trademarl and copyright violations. Now, a modest 3 years later, the U.S. Federal District Court for the Southern District of N.Y. has rendered a decision dismissing Mastercard’s claims and telling them, in legal terms, to get a life and get over themselves.

While only a district court opinion, it gives a fairly good analysis of the relevant law and its application to noncommercial political speech. To summarize: no rational person watching the ad would think Nader was sponsored by or a service offered by Mastercard. Nader’s use was non-commercial political speech, so trademark dillution claims do not apply. It was a fair use of the copyrighted Mastercard commercial, so there is no copyright infringement.

While one would think even the most rabid members of the intellectual property mafia would have been able to figure this one out, it is sadly the case that a decision which embodies such common sense is a cause for celebration these days. When a court can find that a reasonable person might confuse the website of People Eating Tasty Animals with that of People for the Ethical Treatment of Animals, or that mocking lawyers constitutes commercial speech, an opinion like this helps restore this humble lawyers faith in common sense in the judiciary.

But my favorite part of the decision, for personalreasons, is the discussion of parody and the meaning of footnote 14 in Campbell v. Acuff Rose, 510 U.S. 569, 580 n.14. I hang with a number of amature musicians in the science fiction fandom world and the Society for Creative Anachronism (SCA), a group known as filkers for reasons you can find out by readin the filk faq here. In any event, I have long argued that footnote 14 creates a lower standard for parody (that is, the court is less likely to find infringement) if the nature of the work makes it less likely that the reasonable person will think the work authorized by or a substitute for the original.

Many filk songs borrow musical tunes whole cloth from more well known songs. Sometimes it is to make a point about the original, which is the true essence of parody. But more often it is because the person writing the filk can’t write original music (I can’t) and has something clever to say and needs a tune to hook it on. Acuff Rose calls this “satire” rather than “parody” and suggests that it is more likely to infringe than a work that is transformative of the original.

Enter footnote 14 and a dose of common sense. As I’ve always argued, footnote 14 suggests that where there is little chance for confusion or that it will supplant the original, a lower standard applies. That means, I’ve argued, my singing my Star Trek song that goes to the tune of “Yesterday” by the Beatles needs to be less transformative of “Yesterday” than it might otherwise hvae to because (a) no one is going to mistake me for Paul McCartney, and (b) I’m singing it to maybe 20 people in a hotel conference room, half of whom are probably not even paying attention because there is FAR TOO MUCH YACKING IN THE FILKROOM THESE DAYS! Back in my day we SHUT UP when people performed, even if they aren’t big name filkers, thank you, because that is RESPECTFUL and we didn’t keep BLABBING after we finshed singing, we let the next filker start, rather than GABBING with all our FILKHAVEN BUDDIES which you are supposed to do in the FREAKIN’ CONSUITE because the filk room is for FILKING, hence the name, not the GABBFEST ROOM where

O.K., back in law land now. Anyway, the court here adopted a similar interpretation of footnote 14, finding that the likelihood that anyone would regard the Nader ad as a substitute for the Mastercard ad was pretty minimal.

So all in all, it’s a good decision. I expect MasterCard to exercise some common sense and let the matter drop now. But you never know.

And I will add that, despite the triumph of common sense, it still cost Ralph Nader some serious bucks to defend his free speech rights. Instead of passing laws to protect McDonalds, I suggest Congress focus on preserving our First Amendment freedoms by making it easier for succesful defendants to get legal fees in intellectual property cases.

Now that would be . . .Priceless.

Stay tuned . . . .