Copyright Takedown Gives Conservative Party Pretext to Remove Clumsy Political Attack Ad

Credit: Screenshot: CultMtl.com

Good political attack ads make voters angry with–or mock–the politician in the ad, reminding voters how much they dislike the targeted individual or party they represent. Poor political ads expose the sponsor of the ad to ridicule and remind voters why they should question the competence of the Party that created it. The Conservative Party of Canada (CPC), Canada’s official opposition party, is batting ten for ten in the latter category with its latest laughably amateur attack ad against Prime Minister Justin Trudeau recently posted on Twitter. The ad clumsily pasted Trudeau’s face on to the body of (then) 12 year old Julie Dawn Cole, the young actress who played the spoiled brat Veruca Salt in the 1971 children’s epic Willy Wonka and the Chocolate Factory, singing the song “I Want It Now”. (Just for fun, here’s a link to the original; it’s not the 2005 Tim Burton/Johnny Depp version). Instead of throwing a tantrum for more candy, in the CPC ad Trudeau wants an election.

The ad was posted just before Trudeau went to see Governor-General Mary Simon on August 14 to request that Parliament be dissolved, and a general election be held on September 20. As per standard constitutional convention, the PM’s request was promptly granted. Meanwhile, the ad circulating on Twitter was widely ridiculed, including by a number of senior Conservatives. One Conservative Member of Parliament is reported to have said, “I trust the decision-maker who decided to post this tasteless and appalling video will brought up to speed”.

Fortunately for the CPC, copyright came to their rescue in the form of a DMCA takedown notice to Twitter from the rights-holder, who appears to be Warner Media. The film was released by Paramount in 1971 but re-released in DVD and Blu-Ray formats by Warner Home Video a few years ago. Given the free publicity the Conservative ad generated, it might have served Warner’s interests to have left it up a bit longer, but entertainment industry lawyers are, understandably, an unforgiving lot when it comes to copyright infringements. Once Twitter responded to the notice and took it down, the Conservative Party no doubt heaved a big sigh of relief.

They could have pushed back of course, and filed a counter-notice in the US, citing fair use on the basis of satire. Parody and satire are both possible grounds for a fair use defence in the US, although fair use through satire is considerably more difficult to establish than a parody defence, which has already been tested in the courts. (The difference between the two is explained here). Even though parody can be an acceptable fair use, there is still a high bar, as was demonstrated in the Dr. Seuss “Oh, The Places You will Boldly Go” parody case last year. This was a mash up of Dr. Seuss’ “Oh, the Places You Will Go” and Star Trek. It was clever, but it wasn’t parody. On appeal, the Ninth Circuit Court of Appeals overturned a lower court ruling that had found the work to be a fair use parody. The Appeal Court ruled that unless the “parody” is poking fun at the original copyrighted work, it is not a fair use.

Satire (along with parody) is a specified fair dealing exception in Canada, added during the revisions to the Copyright Act in 2012, but just because a use falls within a fair dealing exception does not mean that the dealing is necessarily fair, since a number of other factors also have to be considered. The CPC video was certainly not a parody of the Willy Wonka film; rather, it was an attempted satire of Trudeau and his political objectives, ineffective though it was. But parody or satire, the CPC is not going to prolong the pain by fighting the takedown order. In fact, it quickly removed its Tweet once Twitter blocked the video.

This is not the first time the Conservative Party has run into legal issues with copyrighted material used in producing political attack ads. In the last election in 2019 they helped themselves to clips of interviews featuring Trudeau drawn from copyrighted broadcast content, without authorization, to produce ads showing him in a bad light. Although it was not the only broadcaster to have its material so used, only the state-owned CBC objected. Even though the Conservatives took down the content in question, the CBC sued in order to clarify the legal issues, claiming the Conservatives’ use of the network’s material undermined its political neutrality. The issues were indeed clarified, but not the way the CBC expected. As I outlined in a recent blog posting on the court decision Using Copyrighted Broadcast Content without Authorization to Produce Political Attack Ads: “All’s Fair” Rules the Federal Court in Canada”, the Court found the Conservative Party’s use to be a fair dealing on the basis of the “criticism” exception.

It is clear that attack ads are part of the panoply of campaign measures near and dear to the heart of the Conservative Party. In my blog on the CBC lawsuit against the Party, I noted that in back in 2014 when they still formed the government, the Conservatives tried to slip through legislation in an omnibus bill that would have allowed political parties to use copyrighted materials without authorization in the course of an election campaign. They subsequently withdrew that amendment but the recent Federal Court finding in favour of the Party against the CBC has removed the need for such legislation. While they are now free to craft political ads drawing on material from broadcasters—and possibly other sources such as films—the creation of attack ads has to be done carefully to avoid backfires and backlash. The poorly thought out and badly executed Willy Wonka video is a good illustration of the need for some adult supervision over the creative efforts of digitally savvy (but perhaps not very politically astute) twenty-somethings who no doubt had beavered away in the dark recesses of some CPC office to create what they thought would be a good put-down of Justin Trudeau. But social media is an unforgiving task master if you get it wrong.

In this case, copyright rode to the rescue. In future, if the Conservatives shoot themselves in the foot with clumsy ads that backfire, they probably won’t have that fig leaf to hide behind. There is a lesson here for all the political parties. Think hard before you hit the “send” button to put up a post on social media.

© Hugh Stephens, 2021. All Rights Reserved.

As an update I would note that the day I posted this blog, the Liberals got into their own hot water over a Tweet in which they selectively quoted Conservative leader Erin O’Toole on private health care. Twitter marked it as “manipulated media”. No copyright angle here but the message about being careful about using social media applies to all parties.

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