William Patry on political expression using copyrighted works.
The Nader Ad does add something new and qualifies as a "transformative" work. Whether it "comments" on the original is the issue in question. MasterCard's message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be "purchased" or are "priceless." Hence, "there are some things that money can't buy." This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card--"for everything else, there's MasterCard." Ralph Nader's Political Ad attempts to show various ways [*43] different Presidential candidates can be bought in the "big-money arena of Presidential politics" (Def's Mem. in Supp. Summ. J. 27) and contrasts the "priceless" truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, "which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks." Id. This commentary "may reasonably be perceived." The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader's Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative. (footnote omitted)
Friday, March 21, 2008
"Priceless" political expression
In Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 2004 U.S. Dist. LEXIS 3644, *42, 70 U.S.P.Q.2D (BNA) 1046, Copy. L. Rep. (CCH) P28,781 (S.D.N.Y. 2004), the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright in those ads. The court concluded: