Clear eyes, full hearts, can’t lose (the election)
posted by Howard Wasserman
A mini controversy has sprung up over Mitt Romney adopting the slogan “clear eyes, full hearts, can’t lose” from the tv show Friday Night Lights as a campaign rally slogan. Peter Berg, the show’s creator, wrote a letter to Romney telling him that his “politics and campaign are clearly not aligned with the themes we portrayed in our series” and asking him to “[p]lease come up with your own campaign slogan.” No word, at this point, whether the campaign is going to acquiesce.
This is just the latest in a repeated story–GOP candidate uses some pop culture theme (song, show, slogan, character, etc.) and its creator complains and asks him to stop. And to the extent Berg is correct that Romney’s politics are contrary to the show’s message, that, too, is par for the course. Politicians (and others) have long been using Mellencamp’s Pink Houses and Springsteen’s Born in the U.S.A. as “rah-rah, America is great” songs, completely missing the songs’ obvious theme that America has ignored and abandoned segments of society–the working class, Viet Nam vets, working-class Viet Nam vets.
Several media critics have argued that it is not clear whether the show’s political message is consistent or aligned with the campaign’s message, because the show’s politics are not clear. The show, they suggest, was both liberal and conservative–”bi-partisan,” as one critic writes. Slate’s David Plotz argued last year that the show’s politics are “communitarian;” it values the communities that we create of whatever form–families, friends, schools, small towns, teams, team boosters, churches, etc. It’s an interesting insight, although I would counter that the central institutions depicted–the school, the football booster club, and the town that loved its team–all were corrupt and influenced by wealthy individuals with questionable motives and all screwed over Coach and Mrs. Coach at just about every turn. Anyway, the argument now seems to be that a show with political universality should not be coopted by one side or the other.
The question is whether it matters. Putting to one side any intellectual property issues and whether a political campaign can claim fair use of the song/slogan/show, what difference does it make whether the candidate’s use of the song/slogan/character is consistent with its original or intended message? In fact, isn’t the “fair use” argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent? Plus, whatever the message of FNL itself, the “clear eyes” slogan has little or nothing to do with any of that.
October 14, 2012 at 10:20 am
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Responses (14)
A.J. Sutter - October 14, 2012 at 10:45 am
“Isn’t the ‘fair use’ argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent?” — the same argument could be made about many commercial uses, which would pretty much gut the point of fair use. And as to whether the defense is even available to a campaign, an analogy between commercial use and use in a Presidential campaign ought not to seem far-fetched, considering the huge payoffs involved for the winners — though I’m guessing the Roberts Court would not see things that way.
“What difference does it make whether the candidate’s use of the song/slogan/character is consistent with its original or intended message?” Isn’t that question missing the point of moral rights? And doesn’t the creator have a moral rights interest here?
Ken Rhodes - October 14, 2012 at 1:49 pm
Polite and non-confrontational: “That slogan you’re using is from my copywrited TV show. Please stop using it and come up with your own original slogan, or at least one you borrow from somebody else after getting their permission.”
Still polite, but more assertive: “That slogan you’re using is from my copywrited TV show, which makes it my IP. You do not have my permission to use it. Please stop immediately, so that I do not have to obtain an injunction.”
Not concerned with politeness: “Attasched find a signed order of the court enjoining you from using my copywrited slogan.”
Tom Petty didn’t have to “ask” George Bush to stop using “Won’t Back Down.” Petty *told* him to stop, or he’d sue. Apparently, Peter Berg being polite and non-confrontational can spawn conversation like this thread, as exemplified by the throwaway line “putting aside any IP issues…”
Howard Wasserman - October 14, 2012 at 3:02 pm
That wasn’t a throwaway line; that was an attempt to focus on a specific point. Berg himself didn’t make this about IP; he made it about political message. So that is what I wanted to focus on.
Dr. Graham - October 14, 2012 at 5:08 pm
Politicians rail against China for thieving our copyrights but will dutifully swipe a slogan from a tv show. I’m sorry but it speaks to the void of originality in our political campaigns.
Original thought, original solutions or original slogans are too dangerous or too difficult to devise.
mls - October 14, 2012 at 5:13 pm
If Berg is enforcing his copyright because he does not like Romney’s politics, and would not enforce it against the Obama campaign, should that be considered a campaign contribution?
Shag from Brookline - October 14, 2012 at 8:41 pm
@ #5: If Berg were not to enforce his copyright against Romney, whether or not Berg likes Romney’s politics, would that be considered a campaign contribution to Romney’s campaign?
mls - October 14, 2012 at 11:28 pm
Shag- sure, that would work too. So long as copyright holders have to treat all candidates the same.
Shag from Brookline - October 15, 2012 at 8:15 am
So a copyright holder could be burdened with the risk of making a possible illegal* political contribution by doing nothing, even if he/she is not aware of the possible infringement of his/her copyright? Or would it be necessary to get into the state of mind of the copyright holder, i.e., which way does he/she lean politically? Is there a general requirement that a copyright holder has to treat all – including political candidates – equally?
*Putting a dollar value on the copyrighted material used in a political campaign may be difficult.
mls - October 15, 2012 at 8:35 am
Hey, no fair, it was your idea! Anyway, my question was theoretical, not practical.
But if one were concerned about copyright holders being, in effect, large donors to political campaigns, the rule could be that any copyright holder that wanted to restrict political use of the copyright could so specify in advance, and then it would have to be neutrally enforced against all campaigns.
Shag from Brookline - October 15, 2012 at 9:14 am
mls’ question was indeed not practical, but it was more political than theoretical. mls raised his idea and I questioned it. Why is that “no fair”?
I don’t know if mls’ suggested solution could be practical, especially if congressional action were required. Also, there might be income tax ramifications, such as recognition of income that cannot be offset with a political contribution that is not deductible (unless the political contribution is disguised as something deductible).
Howard Wasserman - October 15, 2012 at 10:14 am
There is no way this is a campaign contribution, any more than volunteering for one candidate or speaking publicly in support of a candidate is a contribution.
mls - October 15, 2012 at 11:37 am
But its not like those things because everyone has (in theory) equal ability to speak or volunteer their time. A copyright is a form of property, which everyone does not have in equal amounts.
A better analogy would be opening up your home for a fundraiser. I am guessing that, for practical reasons, the FEC doesn’t require the use of the home to be counted as a contribution, though the catering (guessing again) would be. But in theory both should be because they involve using private property for the benefit of a campaign.
To be clear, I am not suggesting that it would be desirable to apply federal campaign law here. I am just pointing out that the theory underlying campaign finance law seems applicable to this situation.
Shag from Brookline - October 15, 2012 at 2:03 pm
Here’s a link to a 2004 updated FEC Citizens’ Guide that may (or may not) provide answers on copyrighted material “contributed” to a political campaign as “in kind.”
http://www.fec.gov/pages/brochures/citizens.shtml
The Guide does not address potential income tax issues for such “in kind” contributions.
Joe - October 16, 2012 at 12:36 am
It really shouldn’t matter legally but those who control the rights are more likely to make an issue of it when they don’t like how the intellectual property is being used.
The letter doesn’t look like a cease and desist sort of thing. “Please” is used not “stop or our lawyers will call.” It note Mr. Berg is not “thrilled” etc.
BTW, Mrs. Coach or rather the actress is now on the show Nashville & (to her displeasure) her singer character’s husband is running for office himself.
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