The election is over, but the clash between political speech and intellectual property rights continues
With the presidential election now over, the inundation of signs, billboards, commercials, and rallies promoting the candidates will be gone. But what will not be gone in the wake of November 5th, are lingering court cases and the broader debate between the protection of intellectual property and the right to engage in political speech. This election cycle has seen multiple disputes between the protection of intellectual property and various forms of political speech.
The right to political speech is a fundamental tenant of the First Amendment.[1] The Supreme Court has said “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”[2] Yet, the right to free speech is not absolute,[3] and Courts often have to balance the right to free expression with the rights of creators and “the public interest in avoiding consumer confusion.”[4]
In June, the Supreme Court upheld[5] the so-called “names clause” of the Lanham Act,[6] which prohibits the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.”[7] In that case, respondent Steve Elster sought to federally register “Trump too small” as a trademark for use on shirts and hats.[8] The phrase referenced a joke made by Florida Republican Senator, Marco Rubio, during a Republican Presidential Primary debate in 2016 concerning the size of then-fellow candidate Donald Trump’s hands.[9] Elster’s request for a registered mark was rejected by the United States Patent and Trademark Office (“USPTO”) because it violated the names clause of the Lanham Act.[10]. Elster argued the denial violated his First Amendment rights,[11] however, the Supreme Court unanimously rejected his argument.[12] While acknowledging that the names clause of the Lanham Act is not content neutral,[13] given that it “turns on the content of the proposed trademark—whether it contains a person’s name,”[14] the majority found that the names clause is not unconstitutional because it “does not facially discriminate against any viewpoint.”[15] The case marks a turn in the Supreme Court’s recent trademark law jurisprudence, as Vidal v. Elster was the Court’s third case in the past seven years concerning the constitutionality of a Lanham Act provision, but the only one where the Justices sided with the statutory provision over the constitutional challenge.[16]
In a recent Sixth Circuit case,[17] the Court of Appeals ruled that a breakaway faction of the Libertarian Party in Michigan violated the Lanham Act when they used marks owned by party’s national committee.[18] The case arose from a leadership dispute within the Michigan chapter of the Libertarian Party, where two former top officers claimed to be the official Libertarian Party in the state, and used the national party’s registered marks in order to solicit donations, file campaign finance paperwork, promulgate endorsements, and other political activity.[19] The Libertarian National Committee (“LNC”) sued, bringing various claims of trademark infringement.[20] The defendants argued, among other defenses, that they did not use the trademarks in the context of commercial speech and that their use of the LNC’s trademarks in the course of political speech fell outside the reach of the Lanham Act.[21] The Court of Appeals rejected both arguments, finding that “in the narrow context where a defendant uses the trademark as a source identifier, the Lanham Act does not offend the First Amendment by imposing liability in the political arena.”[22] The Circuit called source identification a “core” interest in trademark law that may sometimes nevertheless engulf political speech.[23] The ruling underscores that a primary test for when the use of a mark might fall under the Lanham Act is source identification, not necessary whether it entails political speech.[24]
Despite these important cases, the intellectual property issue that seemed to grab the most headlines this election cycle concerned the use of intellectual property by political campaigns, particularly the campaign of President-electDonald J. Trump.[25] As recently as last month, singer Rufus Wainwright became the latest artist to denounce the use of his music by Trump’s campaign.[26]Trump played Wainwright’s cover of the celebrated Leonard Cohen song, “Hallelujah,” during a rally in Pennsylvania on October 14.[27] Wainwright appeared soon after on MSNBC to say he was “dumbfounded” and “horrified” by the Trump Campaign’s use of the song.[28] Leonard Cohen’s estate has also reportedly sent a cease-and-desist letter to the former president’s campaign.[29] Trump’s use of “Hallelujah” just the latest in a number of alleged trademark and copyright infringements against him. In September, Jack and Meg White of The White Stripes filed a lawsuit against Trump in the Southern District of New York for his campaign’s use of their rock anthem Seven Nation Army in campaign videos posted to social media.[30] Further, the lawsuit came just days before a federal judge issued ruling finding Trump liable in a similar copyright infringement case for improperly using the song “Electric Avenue” in a social media post during his 2020 presidential campaign.[31] The judge rejected Trump’s arguments of fair use and issued summary judgement in favor of the plaintiffs.[32]. Finally, there have been headlines surrounding Trump’s new line of luxury watches,[33] and for more than just its flagship model’s $100,000 price tag.[34] Some of the line’s more affordable watches were presented in marketing materials as having etched into the caseback a reproduction of a photograph that was taken following Trump’s assassination attempt in July.[35] The original photograph, which shows Trump with his fist in the air and surrounded by Secret Service agents, was taken by an Associated Press photographer.[36] The newswire service has said it will seek to protect its intellectual property rights against the company producing the watches.[37]
Trump may have made headlines for the deluge of alleged intellectual property violations surrounding him, but his campaign is far from the only presidential campaign to seek to use intellectual property for its benefit. In fact, presidential campaigns have used music and art in their promotion since the founding of the country. [38] However, organizations, such as the American Society of Composers, Actors and Producers (“ASCAP”), say campaigns that fail to ensure the proper use of intellectual property open themselves up to “distract[ing]” and “unwanted negative publicity.”[39] And with the Supreme Court’s decision in Vidal[40] and the Sixth Circuit’s decision in Libertarian Nat’l Comm.[41] demonstrating that the use of a mark in political speech can be improper if it misleads the public about the right holder’s sponsorship of that speech, this election’s numerous intellectual property cases underscore the importance of campaigns and political groups receiving proper authorization when using intellectual property.
Footnotes
