Nader Wins Priceless Fair Use Victory v. MasterCard

Back in 2000, Ralph Nader ran a bunch of ads critiquing the corporate interests behind the Bush and Gore campaigns. To make his point, he used the style and some of ideas behind MasterCard's "Priceless" ad campaign -- specifically calling out the dollar amounts that corporate interests paid to candidates to secure their positions on the issues.

MasterCard sued Nader and his campaign committee, claiming that use of the ads violated copyright and trademark laws. My old firm, Fish & Richardson, defended Nader claiming that any similarity to the ads was protected by the fair use doctrine. Mastercard moved for a TRO against Nader and lost but continued to press the case toward trial.

Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader's use was, in fact, fair. A strong victory against overzealous copyright and trademark ownership and for non-commercial political speech.

Comments

[Aaron Swartz]

Hmm. Excellent timing.

[Cypherpunk]

I agree, the timing couldn't have been better. An anti-Kerry ad has just begun airing with the same theme. Here's the AP copy:

Washington-AP -- John Kerry is the target of a new T-V ad that spoofs the "priceless" commercials from MasterCard.
It'll run soon on some cable and broadcast channels. And it pokes fun at his haircut, his designer clothing and his property holdings.

The announcer says: "Massachusetts Senator John Kerry. Hairstyle by Christophe's: 75 dollars. Designer shirts: 250 dollars. Forty-two-foot luxury yacht: one (m) million dollars. Four lavish mansions and beachfront estate: Over 30 million dollars."

Then, a shot showing Kerry and Massachusetts Senator Edward Kennedy. The announcer says, "Another rich, liberal elitist from Massachusetts who claims he's a man of the people. Priceless."

It was created by Citizens United, which is headed by former Republican congressional aide David Bossie. Bossie says he wants to counter the hatred of President Bush that's coming through in ads being aired by supporters of Kerry

[Dan]

I think something must be seriously messed up about our legal system, however, if it can take *four years* to get a *summary judgment*!

[cs]

Good for Ralph and your old firm. My first thought, too, was of the Citizen United anti-Kerry ad. Kerry supporters should start using the format now, too. Number of BushCo variations on this theme -- priceless.

[Nick Poveromo]

Here's a temporary link to some parody commercials that my students and I made to help promote the March of Dimes Walk America event (one of which is a spoof on the "priceless" Mastercard commercial). All these videos were made to increase student awareness and donations for the March of Dimes, not to bring about anger and the possibility of being sued from a company like Mastercard. Copyright laws are explained to and usually followed by most of my students, but when trying to make parodies like these commercials, we had to go outside the lines. Either way, these commercials will not be making it to primetime and once the fundraiser is over, the link will be no more. If anything, watch it and appreciate the work that these students are doing with technology, all in the name of donating money to a worthwhile organization. Any feedback would be much appreciated; thanks for your time.

http://www.kyrene.org/schools/kyrene/wadm/index.htm

[Susan Green]

Hi, I am working on a mini ad campaign using the "Priceless" parady for our Chamber of Commerce. Can I do this legally - it will go into print. Thanks for any help you may have (Susan).