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Political Slogans: Copyright Merger & First Amendment
Political Slogans: Copyright Merger & First Amendment Implications
George M. Gerstein
Generally, when we contemplate the merging of ideas and expression, the quintessential headache for a copyright attorney or court, we think of ideas which, by their nature, are incredibly narrow such that there are only one or two ways of expressing the idea. A textbook example would be attempting copyright protection of a recipe for chocolate-chip cookies. The idea (cookies that comprise chocolate chips) only enables a few ways of itemizing the necessary ingredients (e.g. eggs, vanilla flavoring, etc.). This is because strong circumstantial evidence of copying evinces when an unprotected work is substantially similar to a copyrighted work, and the unprotected author had access to the protected work. In other words, the idea of chocolate-chip cookies is so specific that there are few ways to express it without treading on the thin ice we call “obvious similarity.”
If we were to permit the copyright of political slogans, then the general maxim that there is a relationship between the limited scope of an idea and the possible ways of expressing such an idea does not hold true. This essay will explain why. Before delving into such an endeavor, some key terms need to be defined. First, the “idea” behind the political group’s usage of a slogan is: we are exercising our First Amendment right to criticize President Bush on X issues by using catchy slogans to draw the public’s attention to our basic tenets. The group’s “expression” is the actual slogan used on its placards.
Some political groups simply do not admire President Bush. In fact, these groups criticize the President on essentially every issue, be it the environment, the invasion and occupation of Iraq, tax policy, etcetera. In other words, they apply a “scattered” approach to criticism (their “idea”). Consequently, their political slogans (the “expression”) are equally broad, duly comporting with the group’s general nature of its discontent with the President. One could imagine a political slogan that says, “Out with Bush” or “Impeach Bush!” Both these slogans are ambiguous because they do not tell us why the protestors oppose the President. If a group of this sort were to seek a copyright for such slogans, should we grant it? No, we should not.
We should not copyright generic political slogans on two grounds: 1) it would fly-in-the-face of copyright law; and 2) it would be inimical to the First Amendment’s spirit. We will deal with the former first.
Generic political slogans cannot be copyrightable. The first reason is that broad slogans are not true expression. The fixation requirement mandates that the expression be, inter alia, perceived or otherwise communicated. “Perceive” means “to apprehend,” and “communicate” means “to make known.” Both of these definitions necessarily entail an understanding, on the part of the viewer, of the expression. If someone sees a string of words but has no idea of their meaning, the fixation requirement seems to preclude the expression’s protection. Broad slogans, such as “Out with Bush,” because they are nondescript, do not “make known” or enable one to “apprehend” the protestors’ beliefs. One is forced to inquire with the protestor what he means by that slogan. Therefore, because general political slogans are indecipherable, they are not “fixed” for copyright protection.
Second, generic political slogans are empty-shells and therefore copyrighting them would merely protect the idea. Anyone who has visited the Supreme Court or The White House recently can attest to the swarms of political protestor groups. Each is clamoring for the public’s attention in hopes that others will either join or donate. Because there are so many “voices” out there, and because of America’s short attention-span, pithy and energized phrases are what constitute the most effective political slogans. So pithy, in fact, groups cannot present their platform (the idea) to the public on a placard, but rather must sign-post their organization’s tenets via a catchy phrase. It is not the phrase that induces people to donate or join, but rather it is the luring of people to see the group’s principles which will motivate such action. This is analogous to Barlow’s discussion of digitalization. There is no expression of the group’s beliefs when the slogans are broad (see above), and so a protestor group seeking a copyright for the slogan is, in fact, wanting protection for the best carriage to the essence of what the group is truly trying to impart on the viewers, and that is its platform—the idea.
Third, broad political slogans should not be copyrighted because the idea of haphazardly criticizing the President can only be expressed in a few ways without running afoul of the obviously similar circumstantial evidence blockade. Thus, the idea and expression have merged. For example, how many options exist to—in a very succinct fashion—denounce President Bush? “Down with Bush!” “No More W,” and “Go Home Bush” immediately come to mind, yet are they not all essentially saying the same thing? In essence, the idea of protesting the President in a “scattered” manner is so broad that any expression will be substantially similar to a like sentiment. To analogize, consider the Ninth Circuit’s decision in Rosenthal v. Kalpakian. At issue was a jewel-crested bee. The idea (decorating a platinum-shaped bee with various stones) is so obvious that, of course, jewelers would be hard-pressed to contrive bees not substantially similar to a competitor’s. The Court recognized this point when it said: “Any inference of copying based upon similar appearance lost much of its strength because both pins were lifelike representations of a natural creature.” Something as garden-variety as a natural creature is tantamount to the oblique and amorphous “scattered” objection to the President political groups, with unending criticism, possess. Consequently, because the unspecific criticism against a public official is well-established in this country, it is nigh impossible to separate the slogan from the idea behind it.
Finally, the First Amendment would object to copyrighting generic political slogans. Because such a copyright would essentially preclude others from expressing similarly common criticism of the President, and that copyright law does not force the holder to further express the idea, there is a significant likelihood the public would not hear the sentiment. The Supreme Court, for instance, will almost definitely find a law unconstitutional if a particular expression is not able to enter the marketplace of ideas. If someone does not like the President generally, that sentiment ought to enter the marketplace for all to hear. However, if a general political slogan were copyrighted, the holder could stash its placard with the protected slogan into a trunk and never show it to anyone. The general criticism against President Bush would go unspoken because the other groups wanting to express similar sentiment would be disallowed (e.g., substantial similarity). The Court would frown upon such copyright hostage-holding.
Do not despair, for some political slogans should be copyrightable. When the idea is “specialized” (e.g., the group wants to exercise its constitutional rights to criticize President Bush on a specific issue), then many expressions are possible without substantial similarity amongst them. For example, imagine the slogan “Bush=Tyrant in Iraq.” This phrase, unlike its aforementioned slogan-cohorts, is an actual expression because people can understand the group’s qualms, whether through their eyes or eye-glasses. It is focused enough so that it is not merely sign-posting the idea behind the protest. For instance, upon reading that catchphrase, one immediately recognizes that the group objects to President Bush’s handling of a certain matter in a certain region at a certain time. One need not subject himself to an “organizational meeting” to understand the group’s reasons for protesting the President. Thus, specialized political slogans should be copyrightable because they are actually expressive.
Second, granting copyright protection to specific slogans would duly comport with the economic theory of copyright. A copyright would give the incentive to people to choose slogans that focus society’s attention on particular issues. Society would, therefore, progress because it is now able to channel its energies into resolving one issue at a time, rather than losing sight by criticizing everything. We, as a society, would likely be more efficient in resolving disputes with the Government. Imagine if the Democrats were to take stock of this: pick one or two issues and attack the President on those grounds alone; they would, no doubt, raise awareness, and thus garner support, for their cause.
There are numerous ways of expressing “specialized” ideas, and we therefore do not face the possibility of a merger between the idea and expression. When the ideas are specific, it creates a mindset to dissect particular political issues. For example, one group may criticize President Bush’s decision to invade Iraq on meager evidence of weapons of mass destruction by using as its slogan “No WMD in Iraq.” Another group, also cherishing this “specialized” idea approach, will express its disappointment in the lack of an “exit strategy,” and so might scrawl “Iraq=Vietnam.” The two derive from the same idea—to criticize the President on particular grounds—yet are verily distinct from one another because they express different criticisms. Moreover, as the idea becomes more specialized, this will induce groups to criticize a particular issue from many different angles.
Lastly, copyrighting expressions which emanate from “specialized” ideas will unlikely jostle the Court’s protection of the First Amendment. When the idea is narrow, and each group is trying to carve-out a niche in the topic, there are ample layers to peel to express oneself on a particular issue. Additionally, because groups would take scores of slants on issues, the sentiment will be heard—whether by one or dozens—and the expression so enters the marketplace for all to hear.
At bottom, unlike the typical notion that a narrow idea will spawn the integration of the idea and expression, a constricted idea of criticizing President Bush will generate a bounty of expressive political slogans. On the other hand, when the idea behind a protest group is to attack the President on a host of issues, very few expressions will be sufficiently dissimilar to warrant copyright protection.
Posted by George Gerstein at January 30, 2006 10:06 AM in Commentary Posts
