Question: While the media has brought up the implications of the ad as a loophole to campaign financing restrictions, why is there no media analysis of the copyright implications?
The ad was a re-working of a commercial for Apple Computers. I happen to think that reworking the original commercial for political speech ought to be fair use. But the current state of stifling IP laws clearly seem to hold otherwise. If more in the media were to point that out, it might spur a discussion towards changing one of the many unfortunate aspects of our copyright laws.
News outlets refer to the Hillary Clinton/Apple ad as a “spoof”. But is it a “parody” spoof? Or a “satire” spoof? It seems insane to have to answer this question, but the insane state of our laws compel us to.
The courts have held that “parody” of a work falls under fair use, but “satire” does not. I have long held that you cannot legitimately distinguish between the two. Making such distinctions requires a purely subjective artistic analysis – something that should have no place in the determination of substantive law.
For instance, some argue that a recent Yiddish reworking of “Dick and Jane” should be considered unlawful “satire” since it doesn't directly "comment" on the original work as a “parody” does. I hold that it is clearly attempting to parody the WASP norms put forth by the Dick and Jane characters. Just as I hold that the “Cat NOT In The Hat!” work directly commented on Dr. Seuss's original work by making fun of Seuss's own norms in children's literature by tailoring the story to a famous murder trial. So who is right? Who knows?? It depends on your artistic viewpoint. But it is insane to have the law make distinctions in this realm.
In one instance, it is a case of free speech protected by the Constitution. In the other case, it is an unlawful act that can subject you to a six-figure fine among other penalties. It all depends on how broad a judge's personal sense of humor and/or art is. But some attorneys insist that the legal community is uniquely qualified to draw such lines.
Does the fact that Apple has refrained from claiming copyright infringement mean that it tacitly endorses the anti-Hillary ad? (and, by implication, endorses the Barack Obama campaign?) Or does it merely imply that it feels that the ad is protected speech? It would be disturbing to think that such an ad could exist for several months and generate political discussion, only to have Apple file a complaint later down the road and try to suppress the work.
This is merely the analysis in relation to a potential copyright claim by Apple. There is also the analysis for copyright infringement by the George Orwell estate. After all, the Hillary Clinton/Apple ad is also still a derivative work of 1984, right? Shouldn't Orwell's estate have a say if this ad should be able to exist or not? I don't think it should. But copyright maximalists no doubt feel otherwise.