Jack Approved But Did Everyone Else?

Jack Nicholson appears in an ad for Hilary Clinton (video below). But who approved the ad is a multi- level question. Huffington Post claims “The Hillary Clinton Campaign released a video starring Jack Nicholson today.” The New York Times, however, noted “The video was not posted by the Clinton campaign, and somehow we doubt Mr. Nicholson checked with Mark Penn before choosing the clips.” The Times also points out that even in the YouTube arena Barak Obama seems to be ahead. Will.i.am of the Black Eyed Peas released a “video on Feb. 29, and it already has more than 190,580 views. (By comparison, the Nicholson video, which has been out for about 15 hours, has 518 views.)” Hmm maybe it is a sign that these crazy kids are focused on their people not their parents’ or grandparents’ icon. Take a look at the two ads. The Obama supporting video captures a feeling (uplifting, part of a movement, and of course that means a little disturbing in its fervor) whereas the Clinton supporting video is the leaving generation’s icon, by himself, making a negative point.

The Jack ad may be correct that one should see what exactly Obama offers as opposed to Clinton. But then again since when is one qualified to be the President? Job experience? All three, McCain, Clinton, and Obama can’t really claim experience: “Well no I have not been President That is why I am running. (In the interviewee’s head: Is this question for real? The last guy came in having run a few corps into the ground and lead a state where the governor sort of hangs out.)” Clear plan for the future? “Well it is complicated and folks don’t seem to want details which is nice because really how could one claim to figure all that out before one has the job?”

Now back to the ads. Yes the wonderful world of the Internet and YouTube and mashups is ever more upon us and someone will say the MTV is to balme for the YouTube generation’s further lack of interest in issues. Maybe but this could be a so it goes moment. Still who approved this stuff?

Did the Clinton Campaign? If so as the Times notes the choice of Nicholson’s sinister characters such as The Joker and Col. Jessup for the clips is odd to say the least. The lines in the films ooze irony. In the mashup they are offered at face value as if no one knows those roles in their first context. And no, the ads do not manage to change the context; for if anything Nicholson is known for his wry, dark characters and delivery. Heck just look at the end of the mashup where he says in that Jack voice “I’m Jack Nicholson and I approve this message.” His approval is not supposed to be the point for politics; the candidate’s is. And now for the part of being an IP professor that drives one a bit nuts. Did the studios approve of the ad? Warner Bros. seems happy to go after Rowling’s alleged nemesis. Will it go after Jack? What about Columbia Pictures (A Few Good Men) or Paramount (Chinatown)? I’m not saying they should or that they have a good claim but that has not stopped such acts before. Will they bow to Jack or hold their position and declare his ad to be unauthorized copyright use?

Here is the Jack ad:

And here is the Will.i.am ad

Cross posted at Concurring Opinions

6 thoughts on “Jack Approved But Did Everyone Else?

  1. 5-second clips in a political advertisement? That strikes me as an unlikely infringement claim. If someone else had made this ad, Nicholson might have a right of publicity claim, but I don’t a suit against Nicholson having much luck.

  2. Bruce,

    I said “I’m not saying they should or that they have a good claim but that has not stopped such acts before.” So what are you getting at? What do you mean by unlikely?

    Are you saying that if a non-celebrity made a similar mash up, the studios would be OK with it so the infringement claim is unlikely? Given the tendency to enforce like mad, I think they would at least hand wring and likely send a C&D. Furthermore, there is an irony in that Nicholson might want to stop such an ad made by someone else and ask for help from studios. His claim may have more merit as you note because of someone else using his image to make a statement. But just because he is OK with using his image of himself does not mean that studios would be happy about him using the clips. Last even if the suit would not have much luck, one point is that studios may want to attack anyway but stay their hands because it is Nicholson. If Nicholson’s people obtained clearances that would be interesting in of itself in a Jim Gibson Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J.882 (2007) way.

  3. Hi Deven,

    I just meant that it doesn’t seem like a strong infringement claim. It sounds like you agree.

    Re: right of publicity, I was trying to figure out how else the ad could create liability. I.e., if someone else had made the ad, Nicholson might have a claim. But he made the ad, so that’s a non-issue.

  4. Well yes I do agree with my original post: “I’m not saying they should or that they have a good claim but that has not stopped such acts before.” 🙂

    As for odd-ball claims against Jack, I think you are correct, tough to make them stick. Still with some of the attribution ideas floating about, do you think someone will say that the use somehow harms the author of the films? Again oddball, but I won’t be too surprised when someone (yes when as I think it is a matter of time for this claim to be brought) makes the claim.

  5. Not over this one, makes sense. At some point an attribution-based claim for similar use will occur.

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