False advertising in a judge’s election has consequences. West Virginia judge, Stephen Callaghan, thought it would be a great idea to literally paint a picture of his opponent partying while their county lost jobs. Callaghan Photoshopped a picture of his rival next to President Obama, gave the President a glass of beer and strewed party confetti in the background. Callaghan knew that nothing of the sort had ever happened. Turns out; using a false ad to keep your seat as a judge isn’t such a good idea. After winning the election by 220 votes, Callaghan had to face the wrath of the Supreme Court of Appeals of West Virginia. Upon hearing about Callaghan’s campaign ad, the Court suspended Callaghan without pay for 2 years and fined him $15,000. In a written opinion, the Court stated that the ad was “in every sense, materially false.” Callaghan argued that the ad was “substantially true”, hyperbole or parody. The Court didn’t accept any of his arguments. Callaghan has now filed suit contending that the disciplinary action violated his First Amendment rights.

WHY YOU SHOULD KNOW THIS. Callaghan’s Intellectual Property defense of fair use - - parody is thin at best. Parody can be a basis for copyright fair use. But when intersected with advertising, parody has its limits. For parody to work, it has to be clear that parody was intended. Callaghan’s ad painted his opponent in a false light in order to gain an advantage in the election. That is not fair use. Callaghan now has two years without pay to contemplate the consequences for creating a false ad in a glaring breach of ethics.