Olympic Themed Anti-Romney Ad Pulled After Request From Olympic Committee
Recent IPBrief posts address Olympic branding enforcement and political advertisements with copyright infringement concerns. Now, both issues have reemerged as part of a single controversy. Two days before the Summer Olympics’ opening ceremonies the U.S. Olympics Committee (USOC) requested that a pro-Obama super PAC take down a political ad featuring footage of Mitt Romney at the 2002 Salt Lake City games.
The ad, “Romney Goes for Gold,” puts a negative spin on Romney’s involvement with the 2002 Olympics. The ad shows clips of China, India, Switzerland and other countries being welcomed to the Olympics while alleging that Romney has outsourced U.S. jobs and hidden money in offshore accounts for personal benefit to the detriment of Americans. The ad ends with the announcer stating that Romney “sure knows how to go for the gold . . . for himself.” Priorities USA Action, a super PAC supporting President Barack Obama, removed the ad from YouTube and their website without protest shortly after the USOC request was made.
In a USOC statement spokesman Patrick Sundusky explained “[t]he Olympic Games are a celebration of friendship, excellence, and respect” and “attacks, using Olympic themes and images, need to stop.” According to the Wall Street Journal, plans by pro-Romney super PAC Restore Our Future to air ads emphasizing Romney’s role in the Salt Lake games are also likely to be abandoned in light of the USOC’s actions. In what appears to be a related move, a Romney YouTube ad from earlier this year that included a brief clip of the Olympic Games has been set to “private” on the YouTube campaign page.
There is a question of fundamental fairness that I think is being lost. I’m sympathetic to USOC’s request that Priorities USA Action remove their anti-Romney ad. Associating images of the parade of nations with the negative allegations made in the ad puts both the Olympics and the target countries in a bad light. It’s politically divisive as well as insulting to the countries shown. USOC didn’t take legal action but implying a potential for it was reasonable under the circumstances. I’m not certain the same applies to the Mitt Romney and his efforts to highlight his connection to the Games. Whether it’s a good selling point or not, Romney was the CEO of the Olympic Organizing Committee for the 2002 Winter Games and should be able to highlight that role under nominative fair use. As noted by the 9th circuit in Playboy Enterprises, Inc. v. Welles, sometimes there is no descriptive substitute for trademarks and use is acceptable when the alternative requires “venturing into absurd descriptive phrases.” The long list of protected terms, symbols, and mottos outlined by the current Olympic brand protection guidelines makes it unlikely that any reference can be made without either potentially infringing or getting into “absurd” descriptions.
If push came to shove I believe Romney would win the right to at least limited use of Olympic trademarks under fair use, but taking it up in the middle of the games would only bring negative attention. So the Romney campaign has quietly taken down their ads touting his Olympic leadership during the time when they would arguably be most valuable to him; and has done so because an ad run against him brought negative attention on the Olympics, not because there was a negative response to his own advertisements. Regardless of politics I question if the man has gotten a fair deal here.