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?)