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April 15th, 2004
Thinking of Doing a Parody?
Not only did Ralph Nader foil the Democrats’ bid for the White House four years ago, but a federal court in New York recently ruled that Nader and his political committees did not violate MasterCard’s rights when they parodied MasterCard’s "priceless" campaign.
MasterCard’s well-known "priceless" ads typically feature the items that you can buy (such as, "routine oil change: $20" and "haircut: $75") and those that you can’t (such as, "getting your errands done quicker to spend more time with your family: priceless"), and then end with the line, "there are some things money can’t buy; for everything else there’s MasterCard."
For the 2000 election, the Nader campaign launched a television commercial promoting Nader’s bid for the presidency and his desire to be included in the presidential debates. With patriotic music playing, the spot also featured the items you can buy, such as, "grilled tenderloin for fundraiser: $1,000 a plate" and "campaign ads filled with half truths: $10 million." It also featured something you couldn’t buy -- "finding out the truth: priceless." The spot then noted, "there are some things money can’t buy."
When the Nader campaign refused to pull the ad, MasterCard sued, alleging numerous claims, including trademark and copyright infringement.
Was Nader endorsed by MasterCard?
MasterCard argued that the Nader campaign violated its "priceless" trademarks by, among other things, falsely suggesting that the Nader campaign was endorsed by MasterCard. After considering many factors -- such as the similarity of the services that each was offering, whether the Nader campaign was acting in good faith, whether there was actual confusion, and the sophistication of consumers -- the court said that it did not believe that any confusion about this was likely. The court believed that there was no basis to argue that the ad "which has the clear intent to criticize other political candidates who accept money from wealthy contributors, at the same time, attempts or intends to imply that he is a political candidate endorsed by MasterCard."
Was Nader parodying MasterCard?
A common misconception in the advertising industry is that you are free to use copyrightable elements of someone else’s work, so long as the end result is a funny take-off on the original. Parody is not really about whether the work is funny. When determining whether advertising is a "legal" parody, courts ask whether the advertising is actually commenting on, or criticizing, the work that is being parodied and whether it copies no more than is necessary.
Here, the court determined that the Nader campaign did not commit copyright infringement. The court agreed with the Nader campaign’s arguments that because MasterCard’s message was that "MasterCard is the best way to pay for everything that matters," the Nader commercial was a parody because it "lays bare the artifice 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."
It is not surprising that the court was hesitant to stand in the way of a political campaign, even where the message of the parody was pretty difficult to figure out. Courts are not often so generous with traditional advertisers, however. So, if you are thinking of doing a parody, ask yourself whether you are really commenting on the underlying work, in order to add something new to the debate, or whether you are just taking advantage of someone else’s creative choices in order to provide a humorous platform for an unrelated message. If that is all you are doing, a decision to move in another direction, well, that could be priceless.
This article first appeared in the April 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
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