from the c’mon-guys dept
There is something about when corporate brands get used in political advertisements that seems to make everybody forget about the very concept of fair use or international equivalents. One previous example would be when a bunch of foodstuff brands claimed trademark infringement over an anti-littering campaign in Canada, arguing that the use of their own packaging in photographs was somehow a trademark violation. It wasn’t, but that particular city campaign caved anyway.
But this all gets way more frustrating when an organization that depends on the First Amendment to exist decides to ignore its primacy over a political ad. And that is exactly what happened between the Seattle Times newspaper and Tiffany Smiley, who is running for the Senate in Washington. The Times, along with Starbucks and the Seattle Seahawks, complained about an ad described below. The Times went so far as to send a cease and desist notice to Smiley’s campaign.
In the challenged 30-second campaign ad, Smiley begins by pointing to a shuttered Seattle Starbucks and saying, “These doors are closed because it’s too dangerous to ask employees to work here anymore.” Then, while she says that opponent Murray has “spearheaded reckless policies,” the Seattle Times logo and headline appear, saying, “Seattle’s Awful August Shows the City Continues to Backslide on Crime.”
Similarly, when Smiley complains that the city is suffering from “so much crime that you can’t even get a cup of coffee from the hometown shop on Capitol Hill, even if you can still afford it,” another Times headline appears that underscores her point. This one reads, “Starbucks to Close 5 Seattle Stores Over Safety Concerns.”
This is 100% a textbook case of fair use. And the Seattle Times should know that. Does know that. Certainly whatever lawyer crafted the C&D knows that. The branding was used as part of political speech and they were accurately represented in the advertisement. Smiley is also not competing with any of those brands. The Times complaint was that it had actually endorsed Smiley’s opponent and suggested the use in the advertisement implied an endorsement from the Times. But it doesn’t. At all.
And regardless, this all still amounts to protected speech.
Joel Ard is a Washington state-based lawyer who has experience with intellectual property and fair use law. After viewing the ads, he told The Center Square Thursday in a phone interview, “It’s so blatantly fair use that if someone wanted to make this claim in federal court, they’d likely be sanctioned for it.”
Uh huh. And the real headache-inducing part of this whole story is that the complaint is coming from a newspaper that absolutely relies on the First Amendment and fair use to do what it does. Would the Times like this flipped around? Should the Smiley campaign be able to control when its candidate appears in the paper? Should it be able to keep the paper’s website from showing Smiley’s political ads and commenting on them?
Of course not! But Smiley’s speech is every bit as protected as the Seattle Times’. And while I normally roll my eyes when politicians claim media bias in most circumstances, when Smiley says this…
“While unfair and bias reporting and commentary is likely protected by the First Amendment…that speech protection does not apply to providing corporate resources to a campaign,” explained the complaint letter to the FEC by Charlie Spies and Katie Reynolds, co-counsel for the Smiley for Washington campaign. “What is illegal is for [the Seattle Times] to provide its resources to Patty Murray, and her campaign committee People for Patty Murray, while at the same time denying such resources to her opponent.”
…it’s kind of hard to argue she doesn’t have a point. Her opponent, Murray, also uses Seattle Times branding in her ads without complaint.
Yeesh, folks, you’re a newspaper. Be better than this.
Filed Under: fair use, political ads, political speech, tiffany smiley, trademark
Companies: seattle times