“Hillary 1984″ and Fair Use
Lots of MSM outlets are talking about a homemade YouTube video attacking Hillary Clinton by remixing the iconic Apple “1984″ Super Bowl commercial that introduced the Macintosh. (Note the iPod added to the waist of the woman who busts up the Orwellian meeting!)
The commentary has many interesting points, which I will not repeat, about what this event suggests for this campaign and for the future of politics in an era of user-generated video content. But the excellent Chris Cillizza of the Washington Post may have missed the mark when he summed up another info/law issue that also lies at the heart of the matter:
Several media consultants [he interviewed] also noted that the ad highlights a fundamental difference between the rules of their business and that of the new Youtube world. If a campaign put an ad like this on television, it would almost assuredly face a lawsuit from Apple, a worry that rogue videographers on the web do not have.
Maybe, maybe not. For one thing, Apple, the creator of “Rip. Mix. Burn,” might be in a funny position to condemn such a clever and buzz-producing mash-up. Even if the law were on Apple’s side, I am not sure it would be good for the company’s image — precisely the “geek rebel” profile that it began crafting in earnest with this very advertisement nearly a quarter century ago.
More generally, there is at least some chance that “an ad like this on television” would escape liability, even if a rightsholder sued. I’m thinking about Ralph Nader’s famous ad riffing on Mastercard’s “Priceless” commercials. Mastercard sued. The federal court in New York granted summary judgment to Nader, finding that various fair use theories shielded the ad from liability on both trademark and copyright grounds. The facts of the “Hillary 1984″ ad are somewhat different, of course. While Nader lifted the structure and tagline from the Mastercard ads, “Hillary 1984″ is a nearly complete copy of the Apple ad, reproducing the same images. Also, reconfiguring the Apple logo into an “O” for “Obama” may create more possibility of confusion or suggestion that Apple is affiliated with the Obama campaign or the message of the video. So it would be a close call.
I recognize why an understandably risk-averse political consultant in the heat of a campaign might prefer to avoid the distraction of an intellectual property dispute, even if theoretically the case could be won. But as the anonymous creator of “Hillary 1984″ demonstrates, there are swarms of ad-makers out there now. It seems not just possible but likely that the success of this video will encourage many imitators (indeed, a Clinton supporter has already shot back with this parody of the parody). The most obvious raw material for the home-made political advertiser is existing content that is likely covered by copyright, trademark, or both. Surely, one of these “rogue videographers” will be sued — anonymity hasn’t stopped other IP lawsuits regarding online postings — and then we will see just how far the Nader decision can be stretched. Remember, though: political speech usually gets the best protection in fair use analysis.
Filed under: Copyright, Court Decisions, Digital Media, Internet & Society, Media, Peer Production, Trademarks, Video, Voting
[...] I wrote before about why Apple might not prevail if it sued the maker of the “Hillary 1984″ video, which remashed a classic Apple commercial to attack Senator Clinton’s presidential candidacy. But I acknowledged that it was a close call. [...]