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The Right to Free Speech Does Not Include the Right to Infringe
June 29, 2012 As we head into the heart of this presidential election year, we are reminded once again that political speech must still respect the intellectual property rights of others. This reminder came to us courtesy of President Obama's campaign committee, which recently filed a trademark infringement lawsuit against DemStore.com and its parent company, Washington Promotions & Printing Inc., for selling merchandise featuring the campaign's "Rising Sun" logo (pictured below) without permission.
According to the complaint, the company is "using the Rising Sun Trademarks on merchandise in a deliberate and willful attempt to draw on the goodwill and commercial magnetism of the Rising Sun Trademarks and the Obama Campaigns." The campaign states that it sent several letters to the company asking them to stop using the logo, but to no avail. DemStore's CEO apparently believes that his company is being unfairly singled out, stating in an interview that "there are hundreds, if not thousands, of companies selling material with the Obama sunrise on it." This brings to mind the phrase "if everyone else is jumping off the bridge . . ."
While this may be the first time a political campaign has been on the plaintiff's side of an intellectual property claim, such claims are certainly not new to politics. In 1984 Bruce Springsteen objected to Ronald Reagan's use of his song "Born in the USA" during Reagan's reelection campaign. During the last presidential election, the McCain campaign and the Republican Party ran afoul of music copyright law on several occasions, using songs by Heart, The Foo Fighters, John Mellencamp, and Jackson Browne, all without permission. Jackson Browne was the first to file suit for copyright infringement against a presidential campaign. (Browne v. McCain, No. 08-05334 (C.D. Cal., filed August 14, 2008)).
More recently, one of the principles in the rock band Survivor sued Newt Gingrich for playing "Eye of the Tiger" at political rallies. Not to be outdone, Mitt Romney copied footage of Tom Brokaw's reporting of the 1990's congressional ethics investigation in one of his attack ads against Gingrich, which prompted NBC to threaten a suit for false endorsement.
Freedom of speech is a powerful right and political speech seems to be at the pinnacle of that right. As Americans, we correctly feel that candidates, supporters and opponents should all have the right to communicate freely about their political views. However, that freedom does not generally give the speaker the right to use the intellectual property of others without obtaining their permission. As we are fond of saying, even the President is not above the law, nor is he barred from using that law to enforce his own property rights. As we are also fond of saying, intellectual property suits can come from unexpected places.
We at ThinkRisk are big believers in free speech and we encourage everyone to get involved and be heard, especially when it comes to politics. We are also big believers in intellectual property rights and encourage everyone to respect those rights and obtain permission to use them when needed. Finally, we are big believers in having the appropriate insurance in place when you get a call from the President of the United States asking not for your support, but for your compliance.
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June 29, 2012: The Right to Free Speech Does Not Include the Right to Infringe (Read now)
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April 20, 2012: Intellectual Property Rights Can Be as Transitory as Quarterbacks (Read now)
April 13, 2012: Trademark Issues Can Ruin Your "Book" of Business (Read now)
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