Publicity Value of Having Someone Do a Take-Off on Your Commercial: Priceless

Last week, MasterCard filed a $5 million law suit against Ralph Nader’s presidential campaign for piggybacking on its “Priceless” ad series.

Each of the individual ads in this collection shows a few things that can be bought for money, and gives the amount required, such as “baseball tickets: $50; program: $5.”  The list then closes with something that cannot be bought, usually a feeling of emotional closeness or personal triumph, and tags it as “Priceless.”  Each commercial ends with the line, “There are some things in life money can’t buy.  For everything else, there’s MasterCard.” 

It is a great campaign, brilliantly conceived and beautifully executed.  It has quickly become a classic, instantly recognized by millions of people and a sure attention-grabber, which is exactly why Nader pinched (or borrowed, or parodied) it.  His ad intones, “Grilled tenderloin for fundraiser: $1,000; campaign ads filled with half-truths: $10 million; promises to special-interest groups: over $10 billion.  Finding out the truth: Priceless.”  The ad concludes:  “There are some things money can’t buy.  Without Ralph Nader in the debates, the truth will come in last.”

Lacking a sense of humor?  This, too, is an effective and amusing ad.  But MasterCard lacks a sense of humor.  It has sued Nader for violating its trademark on the term “Priceless,” and for violating its copyrights on the ads used in the MasterCard campaign.

One can sympathize with MasterCard, slightly, on the trademark suit because a company that does not defend a trademark loses the right to it.  But MasterCard’s right covers the use of “Priceless” in connection with financial services, not presidential campaigns, and the US Patent and Trademark Office has registered 87 other uses of the word in connection with assorted products or services.  (The right to use it in connection with cologne belongs to Steven Rosenhaus in New York City.  If you care that “your identity is priceless” and want to protect it with a digital signature, call Daniel Cook in Seattle.)

MasterCard could have a case based on a 1995 law forbidding the “dilution” of “famous” trademarks, even if no competition exists between the products at issue.(1)  The company will certainly argue that the success of its campaign has elevated the prosaic word “priceless” into this rarefied status where it is protected because it is “famous.” 

The copyright-infringement charge is also interesting, especially if one is an intellectual-property lawyer and thus someone who thrills to the doctrinal intricacies of fair use, parody, scenes a faire, and other copyright concepts.  From a layman’s point of view, one mostly wants to say, as Nader suggested, “lighten up,” not just to MasterCard but to other companies as well. 

Intangible values.  Over the past couple of decades, the importance of intellectual property-patents, copyrights, trademarks, secrets, know-how-has exploded.  Such intangibles now represent somewhere around two-thirds of the capitalized value of public corporations.  This makes the lawyers and accountants very nervous, and they now leap to the defense of their IP rights with the ferocity of mother grizzlies defending their cubs.

In a recent article in Reason, Jesse Walker pointed to some of the more ridiculous results of this mindset: TV producers send cease-and-desist letters to web sites run by fans of shows, even though these in fact may help build audiences-Buffy the Vampire Slayer is a prominent example.  The courts crunched a work called The Cat NOT in the Hat (by Dr. Juice) on the ground that it was a commentary on the O.J. trial, not a parody of the Dr. Seuss book, which removed it from the scope of protection afforded to parodies.  Courts have held that photographs of buildings, such as New York’s Flatiron or Cleveland’s Rock and Roll Hall of Fame, cannot be sold by anyone except the owner.(2) 

But these and other creations of the mind are not simple economic assets, nor have their inventors created them ex nihilo.  They both derive from and form part of a great cultural commons in which we all partake.  Buildings draw on 3,000 years of architectural history, plus the ideas of contemporary artists and engineers, for example.  Dr. Seuss is worth mimicking precisely because he so caught the ear of millions of children of all ages, as it is often put. MasterCard’s “Priceless” campaign resonates because it taps into concern that our rich society has become too materialistic, loosing its grip on non-material and more important values.  The ad also resonates in another way.  Since whatever priceless feeling featured in an ad is produced by the purchases listed, the overall implication is that using your MasterCard can indeed buy happiness.  The materialism of the credit-card-carrying classes is reassuringly exalted as the real road to non-material values.  No wonder the campaign is a success. 

Shakespeare to Star Wars.  As many point out, all creation of intellectual property involves theft.  Shakespeare rarely invented an original plot, and his plays are the more powerful because they tap into the audience’s pre-existing awareness of their basic themes.  (I read that somewhere recently.)  Star Wars is an industry that owns numerous copyrights on its characters and paraphernalia, but is there any treasure trove of cultural myth that was not ransacked by its creators?  And the next time you hear the music called Star Wars, go to a video store and check out a 1940 movie called Kings Row-the theme will sound rather familiar.  So how can George Lucas claim: “It’s mine!  All mine!”?

Rock musicians lift from the great blues artists who lifted from gospel that drew on folk music.  The phrase ex nihilo used above is the title of a sculpture at the Washington National Cathedral.  The sculpture itself was cribbed by the movie The Devil’s Advocate, quite memorably, because it was converted into a Satanic orgy and a messy law suit resulted.

The point is, creating intellectual property is a complex and confused business.  Everyone involved is both borrower and lender, because there is nothing new under the sun.  (Is that from Ecclesiastes?  Who is he, and is his copyright still in force?)  Yes, the protection of intellectual property is very important to both commercial and artistic activity, but room must be left for a lot of play in the joints.  It is in no one’s interest that rights be defined so tightly that we reach a state of gridlock in which no one can do anything without being sued, or in which the fear of suit or the cost of its avoidance suppresses creative activities.

Unfortunately, Congress seems unconcerned about this problem.  It sees the current clamor for protection of intellectual-property rights as providing a way to satisfy important constituencies without spending any money.  (Whoops; that comment was made in a 1995 article in the obscure Journal of Cultural Economics.  It seems like an obvious-enough point for any sophisticated Congress-watcher, but maybe I’d better footnote it just to be careful.(3))  

Legal rockets.  This means that Congress shoots its legal rockets into the air, but where they come down is not its department.  (Whoops again; this is borrowed from a 1950s song by satirist Tom Lehrer.  Is it still under copyright?  Have I violated the copyright, or is my allusion fair use?  Can I afford to litigate the point against Lehrer’s high-priced lawyers, or should I cut it out?  Better footnote it, anyway.(4))  It expanded trademark in the anti-dilution act of 1995, then extended copyright terms in 1998, in a law named after Sony Bono but passed, it is widely reported, largely as a gift to Disney, whose copyrights on Mickey Mouse and company were expiring.

Both the law and the social ethos need a better concept of the cultural commons.  I bow to no one in my defense of the institution of private property,(5) but the protection of intellectual property should not be pushed too far, and the anti-dilution act and the Bono act both push in the wrong direction.  If a creator of intellectual property is fortunate enough to hit such a rich chord of public resonance that the result becomes iconic-a Dr. Seuss, a Buffy, a Star Wars, perhaps a “Priceless”-then it should accept the bitter with the sweet, and the scope for parody, allusion, take-off, and imaginative adaptation should be broadened, not reduced.  Since all creators are both borrowers and lenders, and admitting the importance of protection against direct theft, the effort to try to keep the accounts to the penny is ultimately destructive for everyone.

1 For a good discussion of dilution law, see Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208 (2d Cir. 1999), a bruising brawl over Pepperidge Farm’s trademark rights in its “Goldfish” cheese crackers.

2 Jesse Walker, “Copy Catfish,” Reason (March 2000), available at www.reason.com/0003/fe.jw.copy.html. 

3 Robert P. Merges, “The Economic Impact of Intellectual Property Rights: An Overview and Guide,” Journal of Cultural Economics 103, 110-111 (1995).

4 Tom Lehrer, “Wernher Von Braun,” on That Was the Year That Was, CD released 1990.

5 See James V. DeLong, Property Matters: Why Property Rights Are Under Assault-And Why You Should Care (Free Press, 1997).