FORUM; WHERE DOLE'S FORCES GO TOO FAR;SONG, SLOGAN BUTT INTO INTELLECTUAL PROPERTY RIGHTS

By Published on .

The campaign advertising for Bob Dole reminds us of some basic rules of advertising law that even a presidential candidate can't forget.

First, the Dole campaign seized upon the popular song "Soul Man" to create the campaign theme song "Dole Man." Unfortunately, candidate Dole's advisers neglected the rights of the song's publisher and were accused of copyright infringement.

Then Dole's advisers decided to create a new motto in support of his anti-drug position, "Just don't do it," presumably ignoring Nike's rights to its established trademark, "Just do it."

CAVALIER APPROACH

In some ways, Dole's transgressions illustrate the cavalier approach so many political campaigns have taken toward appropriating the copyrights and trademarks of others, let alone speaking the truth in their ads. If a commercial advertiser were to co-opt someone else's creative material, it would take little time for the owner to launch a legal attack. Why, then, do we see a never-ending string of falsehoods and infringements in political advertising?

Like it or not, political advertising enjoys special treatment under the First Amendment. Adopting a policy that limits political speech may prevent the public from hearing the views and positions of every candidate. Therefore, courts and legislatures have held that the First Amendment effectively condones false speech in political campaigns.

However, First Amendment protection does not extend to violations of copyright or trademark law. Dole's campaign probably won't be able to hide behind the First Amendment in defense of its creative raids. The "Dole Man" song takes the music and much of the lyrics from the original composition. A parody defense would likely fail since the Dole rendition is not intended to be a satire of the original song. In reality, it is an unauthorized, unlicensed and unlawful use of the composition.

NIKE COULD TAKE ACTION

A similar conclusion can be drawn from Dole's use of Nike's slogan, "Just do it." Under federal trademark law, Dole's distortion of the famous trademark, and the potential confusion it may create, gives Nike the right to enjoin Dole's ads.

It's clear that presidents and president wanna-bes should not flagrantly flout copyright or trademark rules, but they do. It's also clear that presidents and president wanna-bes should not use false speech in political campaigns. But they do.

While they can get away with the lies, they have to toe closer to the line when abusing someone else's intellectual property rights. Unless, of course, the courts decide that, in political campaigns, intellectual property rights deserve no more protection than the truth.

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