Political ad isn’t commercial, can’t be basis of Lanham Act claim

Nichols v. Club for Growth Action, No. 16-220, 2017 WL
420111 (D.D.C. Jan. 31, 2017)
Club for Growth Action is a political organization that
broadcast a 30-second political ad on Wisconsin television and the Internet in
September 2015, challenging the record of former-Senator Russ Feingold, who was
then running for re-election against Ron Johnson.  The ad
featured the song Times of Your Life
, with the majority of the lyrics
altered but not the composition.  Nichols,
the composer of Times of Your Life, sued for copyright infringement and
violation of the Lanham Act; the court allowed the former claim to continue
despite a fair use defense and dismissed the Lanham Act claim because the ad
was noncommercial speech.
On the fair use defense, Nichols argued that the sole alteration
was to the lyrics, and that the use took “from the very heart” of the
original.  Club for Growth argued that
the lyrics weren’t substantially similar, but that wasn’t an appropriate
question on a motion to dismiss, nor was fair use.

However, “the Lanham Act restricts only commercial speech,
as commercial speech is entitled to reduced protection under the First
Amendment.”  This was political speech,
not speech “in connection with any goods or services.”  Thus, the complaint failed to state a
claim.  (Dastar?)

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