Horatio

Horatio
[Photo by Jacquelyn Griffin)

Monday, March 17, 2014

Jindal's Administration Proves His Own Point

Two years ago, Louisiana Governor Bobby Jindal advised his fellow Republicans Republicans should “stop being the stupid party.”

He has since proved himself a worthy member of the Stupid Party, a group whose membership I will cheerfully concede is not coterminous with the GOP.

Latest, and best example? This:
Louisiana is suing national left-leaning policy group MoveOn.org in federal court, saying it violated trademark rules when it put up a billboard and commissioned television ads critical of Gov. Bobby Jindal that use the state's tourism logo and motto.

Republican Lt. Gov. Jay Dardenne has been locked in a pitched battle with the group for weeks, unsuccessfully calling for it to take down the billboard that is currently up on the I-10 coming into Baton Rouge from Port Allen."We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing," Dardenne said in a statement announcing the suit.
"MoveOn.org has every right to attack Gov. Jindal, the state's refusal to accept Medicaid or, for that matter, me personally. But they do not have the right to use our protected service mark, which is used solely for the purpose of promoting and marketing Louisiana. We own the mark and its use is under the direction of my office, not the Office of the Governor."
(Read the full complaint here).

Now, I'm assuming that Jindal has some level of control over his Lieutenant Governor, and that Dardenne isn't "going rogue" as the dafter right wingers are admittedly prone to do. But this case, filed in federal court, seems to be filed in the complete absence of any knowledge of the limits of trademark protection and, more importantly, of the First Amendment.

Because, ah, Jay? Yeah, Move On almost certainly has a right to use that phrase in a parody billboard. With this current Supreme Court, very little is absolutely sure, but this is mighty close.

Ever hear of Hustler Magazine, Inc. v. Falwell (1988)? No? It involved, as summarized by the late Chief Justice Rehnquist (for whom the current Chief Justice clerked, a few years earlier):
The inside front cover of the November, 1983, issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody -- not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody."
The Court held the ad to be protected speech under the First Amendment.

Nor is the fact that the service mark holder is the plaintiff, and not his boss, the Governor, dispositive; fair use and parody protections under the First Amendment extend to the holders of the mark. Under the doctrine of fair use, a court must consider "1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and 4) effect of the use upon the potential market for or value of the copyrighted work.” Here, where the use is non-commercial social criticism, and the plaintiff is the State, which is especially subject to such criticism under the First Amendment, the case seems to me to be frivolous. The State's political practices are being held up to the state's glossy self-portrayal, and found lacking.

In other words, this case is stronger than Falwell, not weaker--the political actions of the State of Louisiana is being mocked for incongruity with its own ad campaign's tropes. The tie between the protected speech and the use of the service mark is tighter than in the Campari ad case. Nor is the use likely to damage the mark, either--it doesn't dilute it, but relies on its strength to deliver a message about the perceived failures of the Jindal Administration. Moreover, it's a billboard, not a and the original audience, the people of Louisiana, would be aware of the source and nature of the sign.

Move On will relish the fight, the publicity, and, I feel pretty sure, the win.

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