I am all about sharing ideas, borrowing from other concepts to create something new or winking at something inspirational to your own work. All of that is okay and is actually encouraged by the Copyright Act under the fair use defense, the idea of derivative works and the idea of transformative works. However, copying of copyrightable elements is copyright infringement and infringing on the goodwill created by another brand is trademark infringement.
If you watch Monday Night Football in the central Mississippi market, you have undoubtedly seen the commercial below. Forgive the poor quality. I think for obvious reasons the ad agency nor the business have posted the commercial online. I was forced to record it on my iPhone.
Did you catch that? Maybe it reminded you of Hank Williams, Jr. – the original Monday Night Football country celebrity found here.
Or, Faith Hill who started to belt out the new theme song for Sunday Night Football in 2011 found below.
What about Carrie Underwood who is now the NFL® spokesperson?
Undoubtedly, the ad agency/production company came to the client with a “great idea.” I can just hear it now …
“What if we used a Hank Williams, Jr. person and a blonde younger female with tight pants singing a familiar tune. If she reminded people of Carrie Underwood or Faith Hill it would not be a bad thing. We can change the lyrics of the song slightly, but the melody and chord progression can remain basically the same. We can also change keys. We can air them in the local commercial breaks for Monday Night Football!”
There are many things, from an intellectual property standpoint, wrong with this commercial. There are copyright issues with the song, there are trademark issues with when the commercial is broadcast and finally right of publicity issues with the celebrity lookalikes. I am sure it was all swept under the wrong because it is “fair use.” Ah, Fair Use – the concept everyone loves to throw around in order to justify not seeking permission and using someone else’s creative work.
Let’s look at why the commercial is not fair use. The copyright act outlines four generally accepted fair use defenses. Specifically §107 of the Copyright Act of 1976 states, “fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified … for purposes such as (1) criticism, (2) comment, (3) news reporting, (4) teaching (including multiple copies for classroom use), (5) scholarship or (6) research is not an infringement of copyright. Emphasis and numbers added by Ryanne. The statute goes on to mention that there would be four (4) factors a court should consider to decide whether a use is fair; thus, not copyright infringement. The four factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
But, Ryanne isn’t using the tune from Monday Night Football and people who look like Carrie Underwood or Hank Williams, Jr. a parody and allowed under the doctrine of fair use? Yes, absolutely parodies are allowed under the doctrine of fair use. However, parodies only fall under the idea of Fair Use when they are part of “criticism or comment.” The beauty of copyright law is that we have the doctrine of Fair Use, but the beast is that it must be used in certain ways in order to qualify as truly fair use.
In the commercial here, the car dealership is not using the song to comment on some social issue or to criticize the original work, but rather the ad agency/production company is borrowing the tune of the original to profit from its popularity. They are using the popularity of the song in order to sell more cars. Choosing actors who look similar to the actors chosen by the NFL also ride the coattails of the copyright of the song and the creativity the NFL® paid for promoting their football season, which goes against the main purpose of copyright.
The car commercial fails against the four factor test for fair use under (1) the purpose and character of the use, including whether such use is of a commercial nature and (2) the effect of the use upon the potential market for or value of the copyrighted work. The use is completely commercial in nature. The commercial is scheduled during local breaks within NFL® Monday Night Football. Further, the effect is to bring loyal NFL fans into the car dealership because it looks like there is a strong association between the NFL and the car dealership.
It is arguable the use is transformative of the underlying original works. Without a doubt the car commercial is different in that they took the idea, changed the words to the song (albeit the hook “red, white and blue” is the same in both songs) and added other creative expression. However, the parody car commercial was not meant to criticize or comment, but is completely commercial in nature.
Finally, the NFL® could have a really good argument for trademark infringement too. A trademark can be any word, symbol or device which points to or designates source. There is even a case where a smell was able to seek trademark protection. Because of the longevity of the use of the Monday Night Football theme song, I think the NFL® has a strong argument the song serves to designate source and product. The use of a similar tune with similar looking “celebrity actors” infringes upon the brand the NFL® fiercely protects.
Use of the advertisement within the airing of Monday Night Football also creates a strong likelihood of confusion. One of the tenets of trademark law is for the public to not be confused about where products originate. The commercial creates confusion to the average viewer because they could easily come to the conclusion that Rogers Dabbs Chevrolet is associated with the NFL®. This conclusion is easier to make because it airs during NFL® football games on Monday night. And, let’s all remember you cannot use the doctrine of fair use with trademark confusion because fair use lives in the copyright act, not the trademark statute.
Finally, there is the right of publicity issue. The right of publicity issue is definitely here with the Hank Williams, Jr. and Carrie Underwood/Faith Hill lookalikes, but it is not as strong as with the other issues of copyright and trademark law. Right of publicity protects a person from his or her image being used for commercial gain without permission and/or compensation.
Unlike copyright law which is a federal law, right of publicity is state law and varies from one state to the next. Right of publicity is also linked with the concepts of federal trademark law that protects consumers from deception by associating a well-known person with a product or business. Think endorsement deals. Celebrities, alive and deceased, are heavily compensated for association with a product or brand. Some states recognize this right even after the person who is depicted has deceased. It would be a more difficult battle, but because the celebrities, especially Hank Williams, Jr.’s long association with Monday Night Football, I think there are arguments to be made that Rogers Dabbs Chevrolet is benefiting from using actors which seem similar to the images of their more famous counterparts.
It seems that Rogers Dabbs and the crew who helped put the production together should take the NFL® a bit more serious when they put up their disclaimer stating that “all portions of the program are protected by copyright law.” What do you think? Is the commercial copyright infringement or just borrowing on a good idea? Take part in the Comments section below and Stay Tuned In!
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