Intellectual property issues have becoming increasingly present during presidential elections as candidates frequently use music, phrases and even fictional characters in their campaigns. This presidential election is no different.
Big Bird has turned into the political star of this presidential race after Governor Romney made several comments about eliminating funding for Sesame Street and PBS to reduce the deficit. In response, President Obama recently ran ads mocking Romney’s remarks which stated: “Big. Yellow. A menace to our economy. Mitt Romney knows it’s not Wall Street you have to worry about, it’s Sesame Street.” The ad has implicated intellectual property issues such as false association and endorsement for Obama’s use of the Big Bird character. Sesame Workshop, the producer of Sesame Street and owner of the “SESAME STREET” and “BIG BIRD” trademarks, has requested that the ads be pulled stating that “Sesame Workshop is a nonpartisan, nonprofit organization and we do not endorse candidates or participate in political campaigns,” the organization said in a statement. “We have approved no campaign ads, and as is our general practice, have requested that the ad be taken down.”
On the other side of the aisle, Governor Romney has been accused of plagiarism by Peter Berg, the writer-director of Friday Night Lights television series due to Romney’s use of the phrase “Clear Eyes, Full Hearts, Can’t Lose” on posters, Facebook pages and during speeches. The popular phrase, created by Berg, was repeatedly used as a rally for the high school football team on the Friday Night Lights television series. The letter states that Romney’s use of the phrase “falsely and inappropriately associates Friday Night Lights with the Romney/Ryan campaign.”
Courts have held that the Lanham Act does apply to political speech and its purpose of reducing consumer confusion is particularly important in political campaigns. For example, after the 2008 presidential elections, singer, songwriter Jackson Browne filed a lawsuit against presidential nominee John McCain and the RNC for copyright infringement and false endorsement under the Lanham Act for their use of Jackson’s song “Running on Empty” in campaign ads. The court refused to dismiss the complaint, and rejected McCain’s argument that the Lanham Act only protects commercial and not political speech. The lawsuit was subsequently settled and resulted in McCain making a public apology for using the song.