Eileen Hintz Rumfelt, Political Speech: Pricelessmastercard v. Nader and the Intersection of Intellectual Property and Free Speech

• Publication year: 2006

POLITICAL SPEECH: PRICELESS- MASTERCARD v. NADER AND THE INTERSECTION OF INTELLECTUAL PROPERTY AND FREE SPEECH

INTRODUCTION

During the 2004 Olympic Games in Athens, Greece-on the eve of the U.S. presidential election-President George W. Bush ran a political advertisement crediting his administration with "liberating" the Afghani and Iraqi athletes for their participation in the games.¹Bush drew fierce criticism from political commentators and the athletes, but it was the concern of the U.S. Olympic Committee (USOC) that also made headlines.²The USOC claimed that President Bush's use of the word "Olympic" may have violated the committee's exclusive rights in the term, and ran counter to the organization's bylaws.³

This incident is just one of the recent high-profile examples of a clash that is becoming increasingly common in the U.S. political system. We live in a consumer-driven society, where product promotion is common in even the most unlikely places, and where brand icons are often the most powerful tool for companies to connect with the American public.⁴Our nation's attention span is ever shortening, while the clutter is ever expanding, such that those with a message to convey must compete daily with thousand of other messages attacking the consumer.⁵Simultaneously, the line between politics and entertainment is often blurred, with celebrities actively joining the political fray and entertainment icons taking public office.⁶One consequence of this blurring of lines becomes a culture in which familiar consumer images can be very powerful tools for political candidates to use in reaching voters. At the same time, those political candidates open themselves up to parody and ridicule by consumers themselves.⁷The inevitable result of this interplay is a tension between the First Amendment's protection of free speech⁸and the intellectual property laws that protect a company's interest in maintaining its brand identity.⁹

Recently, two cases decided in federal courts in New York and Ohio dealt with political candidates' use of popular advertising icons in their campaign.¹⁰

These were the first cases to evaluate this question in the realm of political campaigning.¹¹The first, American Family Life Insurance Co. (AFLAC) v. Hagan, occurred during the 2002 race for governor in Ohio.¹²Tim Hagan, a candidate, created an Internet character called the TaftQuack duck designed to mock his opponent's position on a variety of issues.¹³While the duck was crudely drawn, its quacking sound bore a resemblance to the now-famous AFLAC duck, popularized in the company's television commercials.¹⁴

AFLAC filed suit to enjoin Hagan's use of the character, relying on both trademark and copyright law.¹⁵

In 2004, the Southern District of New York was faced with a similar issue in MasterCard International, Inc. v. Nader 2000 Primary Committee, Inc.¹⁶

During the 2000 presidential race, candidate Ralph Nader began airing an advertisement based on MasterCard's familiar "priceless" campaign.¹⁷His ads, which aired on both the Internet and television, criticized big-money

Pearl Jam and James Taylor Plan Battleground-state Blitz, L.A. TIMES, Aug. 5, 2004, at A1 (reporting on pop concert to mobilize opposition to Bush); Tom Maurstad, Top 10 Pop Culture Trends, DALLAS MORNING NEWS, Dec. 22, 2003, at 21 (describing "promotional politics" in which "celebrities turned political controversies into publicity"). politics by displaying the price of big-ticket items involved in political campaigning.¹⁸Like AFLAC, MasterCard sued Nader for both copyright and trademark infringement, among other intellectual property claims.¹⁹While both courts ultimately ruled in favor of the political candidates,²⁰this

Comment will argue that, because of difficulties in applying intellectual property principles in the First Amendment arena, these rulings could have easily gone the other way. In other words, there is a strong potential that:

Trademark, like copyright, has now become a general-purpose device for private parties to use when they want the state to suppress speech they do not like. And they are trying to suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements.²¹

Thus, when core political speech is implicated, this Comment argues that courts should analyze claims under First Amendment jurisprudence, which focuses on the content of the message and the type of speech involved.²²

Under that analysis, core political speech garners a high degree of protection from those who seek to silence it.²³Additionally, while commercial speech is subject to a lower standard, it remains protected in some instances.²⁴Thus, by focusing on the content of the speech rather than the property interests involved, the First Amendment better ensures protection for the political speaker who uses consumer icons to convey his message.

In Part I, this Comment provides an overview of the purpose and key tenets of trademark and copyright law, and also briefly discusses First Amendment principles. Part II addresses the case law relating to parody, which often forms the basis for protection of political commentary. Part III then surveys the law dealing with the intersection of political commentary and intellectual property rights. Part IV provides an in-depth discussion of the AFLAC and MasterCard cases, both of which illustrate the potential for inadequate protection of political speech under intellectual property law. Finally, Part V proposes a shift in the paradigm utilized by courts addressing political speech. Part V recommends that the First Amendment inquiry form the primary basis for a court's analysis, rather than the intellectual property statutes, which are an inadequate proxy for protection of free speech rights.

I. BASIC TENETS OF TRADEMARK AND COPYRIGHT LAW

A. Trademark Law

A trademark consists of "any word, name, symbol, or device or any combination thereof" used by a corporation to identify and distinguish the source of its goods.²⁵Current federal trademark law, codified in the Lanham Act of 1946, grew out of the common law of unfair competition.²⁶Consistent with its roots, the chief goal of trademark law remains the protection of market competition.²⁷Underlying this broad goal are two subsidiary imperatives: safeguarding consumers against confusion among brands and ensuring a company's ability to capitalize on the reputation created by its investment in a brand.²⁸Therefore, at its core, the Lanham Act serves to protect commercial interests.²⁹However, the basic goals of the Act often find themselves in tension because the granting of rights to one trademark holder necessarily restricts the options available to others, thus potentially inhibiting competition.³⁰As a result, trademark cases often involve a highly fact- intensive inquiry.³¹

1. Trademark Infringement

The fact-based nature of the law's application is evident in one commonly used method of evaluating trademark infringement: the "likelihood of confusion" test.³²Because most courts have adopted a multi-factored approach to evaluating likelihood of confusion, ³³judicial interpretation as to the weight of each factor is varying. In fact, the Restatement of Unfair Competition discourages a mechanistic application of these elements, noting that an ultimate determination depends on the interplay among the factors as viewed in the context of the particular market.³⁴

The tradeoff to such an individualized inquiry is the potential for vast subjectivity and unpredictable results. In the political context, such disuniformity can implicate significant First Amendment concerns if political speech is squelched in favor of intellectual property rights.³⁵For this reason, one commentator has cautioned that "[t]he first amendment will not permit the trademark owner the power to dictate the form, and thus the effectiveness, of another's speech simply because his trademark has been used to express ideas that he would prefer to exclude from the public dialogue."³⁶

Perhaps for this reason, courts have taken varying approaches to the likelihood of confusion standard when free speech is implicated.³⁷One such approach is the balance of the interests test, in which the public's right to be free from confusion is weighed against the public's right to experience free expression of ideas.³⁸However, some have argued that the absence of a clear protocol for analysis renders the balancing approach subject to its own degree of uncertainty.³⁹

By contrast, some precedent exists for a confusion standard that focuses more heavily on property rights, thus providing even fewer First Amendment protections.⁴⁰Under this theory, if an alternate means of communicating a message exists, courts will find trademark infringement when a protected trademark is used to convey that message.⁴¹This "alternative means" test arises from a strict and traditional view of the property rights associated with ownership of a trademark.⁴²The test is justified in part by analogy to the constitutional "time, place, manner" test, in which regulation of basic considerations related to speech is appropriate so long as alternative avenues of communication exist.⁴³Because this test is based on First Amendment jurisprudence, it has had the ironic result of allowing courts to pay lip service to First Amendment rights while limiting free speech protection.⁴⁴However, in the First Amendment arena, the test first asks whether the regulation restricts the core content of speech.⁴⁵Only when the regulation is content-neutral do courts deem the alternative means test appropriate.⁴⁶In contrast, in the trademark analysis, no such threshold question is asked before applying the alternative means test. In fact, the very inquiry is focused on the content of the user's speech.

2. Trademark Dilution

A second trademark action with implications in the political arena is trademark dilution, a relatively recent addition to the...