Senior Communications Manager
WRF Defeats Copyright and Trademark Challenges to Political Issue Ad
Washington, DC—A 30-second television ad portraying federal taxes as "The Blob"—a red slime devouring the country—did not infringe copyrights or trademarks of the owners of The Blob, a 1950’s sci-fi thriller starring the young Steve McQueen, remade in 1988. In a 31-page opinion issued on June 19, 2002, Judge Lourdes G. Baird of the U.S. District Court in Los Angeles accepted the arguments of Wiley Rein & Fielding lawyer Thomas W. Kirby that the ad made "fair use" of the movie’s contents and did not constitute either copyright or federal trademark infringement.
The ad was made by The Club for Growth, a nonprofit organization that educates the public to the benefits of economic growth. The ad ran on cable stations during 2001 while Congress was considering President Bush’s tax plan. The ad was such a hit that the ABC national news picked up the story and showed part of the ad. The infringement lawsuit followed, seeking damages, legal fees, and other relief.
About 15 seconds of the ad showed a red ooze engulfing the Capital and other national landmarks as a crowd in 1950’s attire fled in panic and a narrator spoke of the "tax blob" that was threatening the country. The 1950 movie showed a scene in which a panicked crowd fled a movie theater and another in which red ooze enveloped a small-town diner.
Judge Baird assumed that the ad actually copied the movie. However, she found that the ad "was part of a political advocacy message, was noncommercial in nature, and its use implicates First Amendment issues of political discussion, all factors supporting a finding of fair use." She also found that the ad used the material in a "transformative" way that "served an entirely different purpose than plaintiff’s original images" and threatened little injury to the market for the movie. Thus, on balance, the public interest in free speech prevailed over the copyright.
"This thoughtful opinion vindicates the right of public speakers to draw on the full range of our cultural vocabulary," said Mr. Kirby. "We need to be able to call a reform candidate ‘Mr. Clean’ or to ask a windbag ‘Where’s the beef?’ without getting sued the next day."
Mr. Kirby is a lawyer at the Washington, DC firm Wiley Rein & Fielding who handles election law, constitutional, and copyright matters. He, with others, presently is representing Senator McConnell, the U.S. Chamber of Commerce, the California Republican Party, and others in challenging the constitutionality of the recently enacted campaign finance legislation.