Legal Commentary

whiny “family man” wants to be Family Court judge — and to copyright the slogan

By David A. Giacalone

Lawyer Kurt Mausert wants to be Family Court judge in Saratoga County, New York.  Since his campaign website went up on April 1st, containing the standard copyright notice “All contents © 2008″ in its footer, the masthead has featured this rather uninspiring slogan:

Although most family men really hate whining kids, and he is a father of four (ages 8 to 26), Mausert is loudly and plaintively complaining that his opponent — incumbent judge Courtenay W. Hall — has “stolen” his Family Man slogan and violated the copyright held on it by the Mausert election Committee.  See “Saratoga County Family Court candidates battle over slogan” (Schenectady Daily Gazette, Sept. 5, 2008; update); “Whose line is it, anyway?” (TU Local Politics weblog, Sept. 2, 2008). A few months ago, Mausert also complained that leaders of the Independent Party treated him unfairly by not interviewing Mausert before choosing to endorse Judge Hall.  The candidates are fighting for the Independence Party endorsement in a primary election on Tuesday. They will both be on the November ballot, Hall as a Republican and Mausert as a Democrat (See The Saratogian).

According to Mausert’s campaign manager, attorney RIchard Moran, all of Mausert’s campaign literature has included the Family Man slogan, but when Judge Hall sent out his first flier about a week ago he also claimed to be a “Family Man for Family Court.”  Moran told the Gazette:

“Even if we hadn’t taken the care to post our copyright notice, it is simply unfair for one candidate to swipe another’s popular and well used slogan.”

Judge Hall had no comment, but his campaign manager Jeffrey Bagnoli told the Gazette:

“The allegations in that press release are patently untrue.  Judge Hall used the slogan ‘A family man for Family Court’ 10 years ago, when he ran for the office for the first time.”

Bagnoli says the charge violates the judicial code of ethics.  Mausert responded that the press release merely asks a question and is therefore not defamatory. In the print edition of the Schenectady Gazette, Kurt is quoted saying:

“You have two tall, thin, bald white guys running for the same office. If you met me five weeks ago and then received his literature today with the same message on it, it’s going to be confusing.”

update (3 PM): The Glens Falls Post Star has more coverage with revealing quotations,”Candidate claims opponent stole his slogan” (by Drew Kerr, Sept. 4, 2008):

“The Web site has a copyright on it, but Mausert said he has no intentions of pursuing a legal case against Hall. Instead, he said the incident speaks more to Hall?s character.

” ‘Forget about any man-made law,’ Mausert said this week. ‘This is about integrity. People?s words and phrases are just as much their possession as an automobile.’

“. . . ‘For him to come out a week and a half before the primary with the same thing, it?s bound to cause confusion,” Mausert said. “I have to think this is deliberate.’

Calling Mausert?s allegations ‘over the top’ and ’smear campaigning’, Hall’s campaign manager Jeffrey Bagnoli, responded that “It?s preposterous to think that because he puts the slogan up on a Web site that he thinks he owns it.”  According to the Post Star, “Bagnoli also said Mausert should ‘give a lot more credit to voters in Saratoga County’ who should be able to differentiate the two.”

Meanwhile, over at Court-o-rama, Anne Skove suggests sending the two candidates to mediation, and notes how important it is to see the way judicial candidates handle conflict.  She adds, “Usually we bemoan the fact that the public knows too little about the candidates. In this case voters may have learned just enough.”

Kurt Mausert appears to have many fine qualities, and is making proposals for improving Family Court with which I, as a former Law Guardian and mediator, agree (e.g., having a website that helps explain how the court works and what to expect as parties; and using mediation to resolve disputes).  It’s too bad — especially since his website tells us “Kurt has trained in the martial arts (Kempo) and works out regularly at Global Fitness in Saratoga Springs” — that he has come out swinging with such wimpy accusations.   Two points that seem especially worth mentioning before we close:

• With a few minutes of Googling, Lawyer Mausert or Lawyer Moran could have learned (as I did) that slogans are not protected under copyright law. Thus, the U.S. Copyright Office tells us they “cannot register claims to exclusive rights in brief combinations of words such as: . . . Catchwords, catchphrases, mottoes, slogans, or short advertising expressions.” (Circular 34, rev’d Feb. 2006)  A distinctive commercial slogan can sometimes get a trademark (see My Norrby’s treatise, “Trademark Protection of Slogans“), but as the Fair Shot weblog has noted, “unlike the commercial case, in which dilution can be stopped by a lawsuit, there is no recourse for dilution of a political slogan in common currency”.
• “A Family Man for Family Court” is not a “message” and is only “popular” in the sense that it has been used over and over by less-than-ingenious Family Court candidates.

update: (12 PM): Commenting on our post at Legal Satyricon, First Amendment and Copyright Law Professor Marco Randazza says, “At least one of the candidates doesn?t know the difference between copyright and trademark ? and certainly knows nothing about either field.” (4 PM): Getting into the election year groove, Carolyn Elefant offers a thorough (but un-snarky) summary of this controversy at Legal Blog Watch this afternoon.

afterwords (3 PM): Always pleased to learn a little etymology, Prof. Yabut thinks its pretty interesting that “The term ’slogan’, is of Gaelic origin, and descends from the word ’sluagh-gharim’, war cry.” (The Swedish National Encyclopedia, 1995, via My Norrby)

one mosquito
whining all day…
my pillow

mosquitoes whine–
even the rustling bamboo
is slandered

the whining mosquito
also thinks I’m old…
edge of my ear

… by Kobayashi Issa, translated by David G. Lanoue

p.s. Having started this mosquito theme, and having written no new poetry this week, dagosan wants to share this photo taken at the end of our block (Washington Ave. in the Schenectady Stockade) a couple weeks ago, and a poem it inspired.

swat swat
swat swat swat
calamine sunset

.. by David Giacalone - The Stockade Spy (Sept. 2008)

Full post as published by f/k/a . . . on September 05, 2008 (boomark / email).