Introduction, or, “Are you ready to rock?!?”
The 2012 presidential campaign in is full force. How can I tell? I can hear it. If you close your eyes and listen, you may be able to hear it too: classic rock blasting from the PA systems at campaign rallies and YouTube videos featuring former top 40 hits playing underneath political messages. In past years, Bill Clinton entered the ring, entourage in tow, to Fleetwood Mac’s “Don’t Stop.” George W. Bush hit the squared circle with “I Won’t Back Down” from Tom Petty. (You’d think Michelle Bachman would learn.) Today, this rock song/politician marriage has his its pinnacle. Every major presidential candidate in the last several elections has rehashed a 70s or 80s hit to “symbolize” (we’re brushing with broad strokes here) the message of his or her campaign. GOP candidate Newt Gingrich is the newest offender. Even lower level baby-kissers, like Rand Paul of Kentucky, joined the rallying cry party. Cue the frenzy of public admonitions, cease and desist letters, and frantic calls to intellectual property attorneys.
Copyright Law, or, “This is the one that made us famous.”
Unfortunately, there is a little obstacle called copyright law, which most politicians fail to hurdle before exploiting the protected works of others. There are two basic copyrighted works involved in a song: the musical composition and the sound recording. The artists’ claims against the politicians are more clearly defined in their exclusive rights in the musical composition. Under federal copyright law, owners of a musical composition that is original and fixed in a tangible medium for more than a transitory duration maintain an exclusive right to reproduce the work, prepare derivative works based upon the work, perform the work publically, and distribute the work for the life of the author plus 70 years. IIt is largely copyright law that the aging musicians use to bring suits against the politicians for infringement. (The other theory of law under which musicians have brought suit is false endorsement under the Lanham (Trademark) Act, which has been shown to be a less successful claim.)
The critical element of the copyright statute at issue here is the right to publicly perform the copyrighted work. When Sarah Palin blasts “Barricuda” or John McCain shuffles to the heady beat of a Foo Fighters tune, the artists claim their right of exclusive public performance has been violated. On its face, this seems like a fairly easy argument to make. However, critical details about the law of copyright and the ownership of the original works at issue distort the issue like an amp turned to eleven. Issues of copyright ownership and licensing, and the doctrine of fair use each suggest that perhaps the politicians have fallen into a unique loophole in copyright law wherein their uses are not actually violations of copyright law.
Rights of the Politicians, or, “You may remember this one!”
Ownership of the compositions (and recordings) favors the politicians. How so? Mainstream musicians are generally under contract to massive record labels. Thus, typically it’s the labels, not the artists, which own the copyrights in the sound recordings. Deals with record labels can be hugely lucrative for musicians. However, a caveat of most record deals is that an artist grants full legal control of his or her music to the label. Nevertheless, its not the record label, it’s the publishing company, yet hand in the cookie jar, that controls the copyrights in the musical composition. The web of artists, record labels, and publishing companies is just a small fraction of the legal rights attached to a song recording. The important take-away for the politicians: the artists themselves usually possess very few legal rights in their own music.
Thus, when a candidate seeks to use a protected work (like a copyright protected musical composition), he or she can pay a royalty to the publishing company and receive a license to use the work in a specified manner, avoiding all legal ramifications. So, while the artist rakes in the cash through royalties (which matriculate down from the publishing company to the artist), the artist is then left with no legal remedy to stop the politician’s use. Alternatively, when a work is misappropriated (ie, there is no payment for use), there has been a copyright violation. So, when John McCain and his party post a political ad using Jackson Browne’s “Running On Empty” without paying for a license to Browne’s song, the copyright owner in the musical composition has a potential copyright infringement claim, and the infringer is more likely to settle the claim. But, so long as Clinton, Bush, and whomever else pay royalties to the owner of the copyright, the rockers may be out of luck if the politicians refuse balk at their requests to stop.
If the musician owns his or her own copyrights, he or she may still be subject to the fair use privilege. There is no bright-line rule for fair use. Instead judges balance four factors (the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market) to determine whether the artist’s copyright interests are secondary to the use being sought. Therefore, an artist who has taken all the steps necessary to maintain ownership of the contested work may still be out of luck, depending on the fair use analysis. Importantly for the musicians, though, fair use analysis is applied at the discretion of the judge. The controversial decision in Henley v. DeVore suggests that judges may be very malleable with the law when seeking to protect artists’ rights.
No matter the viability of their legal remedies, musicians have been extremely successful at stopping politicians from utilizing their creative endeavors in political forums. Why is that? It is possible that the politician doesn’t want a legal controversy at the apex of his or her campaign, especially against a well-liked public figure like Dave Grohl or Jackson Browne. Therefore, instead of fighting the legality of the artist’s claims, which may or may not be valid, it is easier for the politician to find a new song and hope either that the new artist doesn’t get wise to the use, or that the two happen to play for the same political team.
Copyright Protection versus Political Motivation, or “Here’s one from the new album!”
The musicians insist that their motivations are not political. Like a classic band’s newest single, nobody really buys that. The artists fight out of the blue corner against politicians fighting out of the red corner, with a few exceptions. The copyright claims are not frivolous, but they are certainly aimed. As the researcher for this article, Sarah, said to me at the conclusion of her work, “Wow, all Republicans (and one for Obama).” Still, no matter the antipathy between the liberal musicians and the conservative candidates they seek to enjoin, and no matter how blatantly political the claims may be, we cannot forget that there remain viable copyright issues at stake when a politician chooses a protected work of popular music as a rallying cry for his or her campaign.
Conclusion, or “We got one more for ya!”
Although it appears that, in our fractured and tumultuous political climate, snowballing towards what is certainly to be a torrid presidential election (perhaps the nastiest since Herbert Hoover’s Republican Machine slandered Democrat Al Smith to a 6-million vote majority in 1928), musicians are taking litigious stances against politicians more frequently, I still can’t help but wonder: would it be different if the politicians actually used songs that accurately reflected their various viewpoints? Perhaps honest use could foster harmony between these adversaries. Therefore, I would like to close my discussion on the use of copyright protected music in political forums with some musical suggestions for the 2012 candidates (may some campaigns rest in peace):
Herman Cain: “Blame It On Cain” by Elvis Costello. Cain-endorsed Newt Gingrich may be shouting to the sky if his campaign comes up short.
Barack Obama: “Best of Both Worlds” by Van Halen. For the President of the people, and by “for the people,” he means continuously bailing out big businesses with the people’s money.