IP Attorneys Increasingly Getting Their Own Patents And Suing

McCain Campaign Ignores Cease-And-Desist; Keeps Playing 'Barracuda'

from the legal,-yes,-smart? dept

Wed, Sep 10th 2008 2:17pm — Mike Masnick

Last week, we noted that the band Heart had sent a cease-and-desist letter to the McCain campaign for its use of their song "Barracuda" as part of the intro for VP candidate Sarah Palin (nicknamed Sarah Barracuda -- or, as someone noted, Sarahcuda). As we pointed out, it appeared that the cease-and-desist was pretty worthless on legal grounds. As long as the venue had paid the proper performance license they could play whatever songs they wanted. However, just because it was perfectly legal, didn't mean that it made sense. After all, picking songs from artists who disagree with your positions seems like a recipe designed to give someone else a platform to speak out against you.

However, it looks like the McCain campaign is sticking with the fact that this is a perfectly legal use of the song, and is ignoring the cease-and-desist. Video Savant writes in to let us know that the campaign is still using the song at campaign appearances by the candidates.

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Filed Under: barracuda, copyright, heart, john mccain, performance rights, sarah palin

49 Comments

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alternatives(), 10 Sep 2008 @ 2:23pm

If they are paying the ASCAP fees
Or whatever the public preformance fees are - I can't see where the 'owners' have a leg to stand on.

And odds are the song is 'owned' by a big record company, the C&D is therefore invalid.

Good luck to 'em suing.
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Elizabeth in Virginia, 10 Sep 2008 @ 2:39pm

Actually, they DO get a pretty hefty sum from the McCain camp. The band and their manager have already said that all the money that they get from McCain goes straight into Obama's campaign donations.

Nice way to get respect. Funny.
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Mike (profile), 10 Sep 2008 @ 3:16pm

Re: If they are paying the ASCAP fees
Or whatever the public preformance fees are - I can't see where the 'owners' have a leg to stand on.

Right. That's what I said...

But the point is whether or not it's still a bad idea.
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Anonymous Coward, 10 Sep 2008 @ 3:18pm

To the first response
A cease and desist letter is quite different from a lawsuit...

With the law it's kind of like a sanction, without the law it's just a request. Does any of that matter? No, the point is McCain got dissed big time by a band everyone knows for that song that everyone knows.
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Nogard, 10 Sep 2008 @ 3:26pm

Re:
Are the license fees really going to Obama's campaign? OMG, that's just hilarious :D
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Michael Long, 10 Sep 2008 @ 3:40pm

Wishes
Someone is doing something against the wishes of the copyright holder?

Oh, the inhumanity....
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DittoBox, 10 Sep 2008 @ 3:47pm

Re: If they are paying the ASCAP fees
It's a public perception thing. Just because I can do X, doesn't mean I should do X.
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wasnt me!, 10 Sep 2008 @ 3:50pm

i wonder if in a couple of weeks or so we will hear about the band Heart making a fuss about a sudden increase of file sharing if its music.
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Rick, 10 Sep 2008 @ 3:58pm

I think it is typical of McCain's approach. He could care less what ANYBODY else thinks!!! He is going to do whatever HE wants. Anyone gets in his way they get squashed!!
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Jim Beam, 10 Sep 2008 @ 4:03pm

Squashed?
C'mon Rick, playing a song that you can legally play is hardly an example of McCain squashing someone. That's as senseless as me saying that whenever you speak out against Obama, his campaign bounds and gags you.
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Joe Blow, 10 Sep 2008 @ 4:28pm

the music
C'mon guys, is this all you can squabble about? I meaqn dont we have more important issues to deal with then who wants who's music played?? Seems like a slow news day to me!!!
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Jack Daniels, 10 Sep 2008 @ 4:28pm

Re: Squashed? II
Didn't the Obama campaign have a reporter arrested for standing on a sidewalk during their convention?

Didn't they threaten a private citizen for daring to bring up Bill Ayers?
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dave shemano, 10 Sep 2008 @ 4:48pm

but what they can do is...
record a scathing parody of their song and release it as soon as possible.
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Anonymous Coward, 10 Sep 2008 @ 4:50pm

Can only brain dead liberals listen to their music too?
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Mike42 (profile), 10 Sep 2008 @ 5:11pm

It's like this...
McCain campaign: We'll play 'Baracuda' to show what a bad-ass Sarah is!
Heart: We wrote, composed, and performed the song, and we would like it if you didn't use it to promote your campain, because we don't agree with it.
McCain campaign: Screw you! We paid our performance fees! We can do whatever we want with your song!
Heart: You know, a ferocious, schooling, stupid fish is appropriate for this campaign...
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Bill, 10 Sep 2008 @ 5:18pm

Re: but what they can do is...
Sarrahcuda

So is Pailin the end -
She’s failing again today
I had to turn my vote away
Smiled like the sun -
Wishes for real
And wails - it never fails!

She’s lying so low in the weeds
I bet she’s gonna ambush me
She’d have me down down down down on my knees
Now wouldnt she, Sarrahcuda?

Back over time we were all
Living free
You met the people and me
No right no wrong, selling a psalm-
A name, whisper game.

If the real thing doesn’t do the trick
She’d better make up something quick
She’s gonna turn turn turn turn it to the stick
Ooooooh, Sarrahcuda?

Sell me sell you the party said
Dive down deep down to give em lead!
You...i think you got the blues too.

All that night and all the next
Scam without looking back
Made for the neo-con pools - silly fools!

If the real thing dont do the trick
No, you better make up something quick
You gonna turn turn turn turn it to the stick
Ooooooohhhh, Sarrah Sarrahcuda.
Ohhhhhhhhhhhh.
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The Sisters, 10 Sep 2008 @ 5:39pm

Better lyrics?
Sorry but the 4th verse should be.

If the real thing doesn’t do the trick
She’d better make up something quick
She’s gonna cry about a pig in lipstick
Ooooooh, Sarrahcuda?
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jonnyq, 10 Sep 2008 @ 5:41pm

However, just because it was perfectly legal, didn't mean that it made sense. After all, picking songs from artists who disagree with your positions seems like a recipe designed to give someone else a platform to speak out against you.

What the? Mike? So campaigns are supposed to look up the political views of artists before they use their music? Does the artist eternally own the content of the song? (Surely you wouldn't believe that...) I personally like lots of songs by artists whose beliefs I don't like. It wouldn't stop me from using their song on my MySpace page for example.

What about non-political scenarios? I'm sure there are plenty of artists who have their music used in commercials they might not like.

The example always mentioned is Born in the USA. Reagan used that song but the verses of the song wouldn't agree with the way it was used. That would be a more reasonable example. However, I've heard plenty of songs' choruses used out of context before in ways where the verses wouldn't make sense. It's a fairly common practice.

Sure, you might be able to make a LITTLE political hay about the McCain campaign using a song written by an liberal/Democrat artist, but that alone would be a silly reason for them to NOT use the song.

In related issues, there's a fun story behind Rush Limbaugh's theme song. The words of that song (which he doesn't play) are politically opposite of Rush's positions.
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Anonymous Coward, 10 Sep 2008 @ 5:47pm

Taking the nickname given to you by students who weren't exactly fans of you, and then taking a song by a band who actively and publically dislike you to promote that nickname, whilst at the same time giving funds directly to Obama's campaign (the money the band get from their use of the song, they give to Obama's campaign)...

That's pretty silly.
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Lawrence D'Oliveiro, 10 Sep 2008 @ 5:55pm

They're just playing into the hands ...
... of Barack "Uda" Obama.
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Anonymous Coward, 10 Sep 2008 @ 6:11pm

"McCain Campaign Ignores Cease-And-Desist; Keeps Playing 'Barracuda'"

And apparently he will continue to ignore the desires of others if he attains office.
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Anonymous Coward, 10 Sep 2008 @ 6:26pm

Re:
jonnyq -> "So campaigns are supposed to look up the political views of artists before they use their music?"

Would you ?
I would ...... but that's just me - I'm weird.

It would be funny if McSame used the music of "Rage Against the Machine"
FWIW: http://en.wikipedia.org/wiki/Rage_Against_the_Machine
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Sleezball McCain, 10 Sep 2008 @ 6:29pm

Re: Re: Squashed? II
Didn't the Obama campaign have a reporter arrested for standing on a sidewalk during their convention?

No. That was a Denver Poice officer, was jailed for disobeying a police officer. No relation. What about the 400+ protesters who were jailed in St. Paul?

Didn't they threaten a private citizen for daring to bring up Bill Ayers?

Bill Ayers? Are we still on that story? Man if you want to pull punches, let's talk about how Ross Perot Paid McCain's First Wive's Medical Bills when John went to go play the field and marry Cindy 5 weeks after returning from Vietnam. Is there a song for that?

Check out McCain's wandering eye-- checking out Sarah Palin
http://www.youtube.com/watch?v=9qUVQDmLf7s
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Sleezball McCain, 10 Sep 2008 @ 6:29pm

Re: Re: Squashed? II
Didn't the Obama campaign have a reporter arrested for standing on a sidewalk during their convention?

No. That was a Denver Poice officer, was jailed for disobeying a police officer. No relation. What about the 400+ protesters who were jailed in St. Paul?

Didn't they threaten a private citizen for daring to bring up Bill Ayers?

Bill Ayers? Are we still on that story? Man if you want to pull punches, let's talk about how Ross Perot Paid McCain's First Wive's Medical Bills when John went to go play the field and marry Cindy 5 weeks after returning from Vietnam. Is there a song for that?

Check out McCain's wandering eye-- checking out Sarah Palin..It's great when he subconsciously fiddles with his wedding ring!
http://www.youtube.com/watch?v=9qUVQDmLf7s
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eleete, 10 Sep 2008 @ 6:52pm

http://www.eleete.com
Wow, almost quoted in a TechDirt posting. I feel like Steve Martin with a phone book.
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eleete, 10 Sep 2008 @ 6:59pm

http://www.eleete.com
Wow, almost quoted in a TechDirt posting. I feel like Steve Martin with a phone book.
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Brutus Beefcake, 10 Sep 2008 @ 7:00pm

SCREW HOLLYWOOD
If it pisses hollyweird or other dirtbags in the flaming left "entertainment industry" then I like it.

Maybe Obama bin Biden will start playing it as they tour 57 states so far.
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Garry King, 10 Sep 2008 @ 7:03pm

C'Mon ladies, get over it
I'm a huge fan of Ann and Nancy Wilson, but C'mon ladies, get over it. You should be flattered that so people who are at odds with your political views will still embrace and pay dearly for your extraordinary music. I seriously doubt that the candidate you support would be so open minded. Please try to be open minded about your fans views and put your energy into what you do best.
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Jay, 10 Sep 2008 @ 7:08pm

The real question is how can anyone vote for McCain? It is completely amazing. I mean our country is so messed up right now and how can anyone in their right mind vote for a guy who is basically another Bush. I am neither a Rep or a Dem but the 100% fact is that 8 years of Rep Bush has killed this country. How can you vote for more of this? OMG.
Plus the guy is a fossil.
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Mike (profile), 10 Sep 2008 @ 7:26pm

Re:
So campaigns are supposed to look up the political views of artists before they use their music?

Not supposed to. I'm just saying (and I thought I said this clearly) from a PR perspective, it would make sense for them to do so, since it's a political campaign and all...

What about non-political scenarios? I'm sure there are plenty of artists who have their music used in commercials they might not like.

Well, actually, for a commercial you do need to secure the approval of the copyright holders. So it doesn't really apply there.

But, as I said, I think this is unique to a political campaign, which is a popularity contest. You don't want to give extra ammo to the other side, and doing something like this does.
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Bill1016, 10 Sep 2008 @ 8:25pm

Barracuda
As long as use of the song is legal, compaining about it just exposes you for what you really are - a whiney little liberal. Grow up and get over it.
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Anonymous Coward, 10 Sep 2008 @ 9:28pm

Re: Barracuda
Sounds like you're the whiner
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Anonymous Coward, 10 Sep 2008 @ 10:02pm

Theme song for the "Sexy Librarian"
I found my 3nd Generation iPod last week and was scanning thru the songs today on the way to McCain's first Pit Stop after the Primary- The building across the street from Focus On The Family. Guess what was on the iPod?

Barracuda by Heart.

After a few minutes of listening to it, all I have to say is "WOW". An excellent example of American Music. I hope McCain and his team play that song until the end of time. No wonder why that never got transferred over to my iPod Classic. What a disgrace- that I actually paid for it.

I admit, it was the first time I played the song all the way thru.
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Anonymous Cow, 10 Sep 2008 @ 10:47pm

nobody cares about the artists' views
Most sane people do NOT want to hear the political views of the artists of whose music one is listening to it because those people do not care for politics while escaping reality with music for a short time.

We sane people have a piece of advice for such artists/bands: STFU and sing or get the hell off the damned stage!
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Enrico Suarve, 11 Sep 2008 @ 3:20am

Re: nobody cares about the artists' views
Aye - cos there's a whole lot of sanity in American Politics

Ooh - She's a Hockey mom - I'll vote for that
Ooh - She says she's ferocious - I'll vote for that
Ooh - Shes got sod all experience of governing, loves earmarking (as long as it's for her), wastes public money on pointless projects and hasn't actually said what her policies would be on anything

"who cares she's a pitbull - I'll vote for that"

Yeah - heaps of sanity
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rebrad, 11 Sep 2008 @ 4:43am

Re: Re: but what they can do is...
Bill, I wouldn't quit my day job to write lyrics. IMHO I think Palin could find a better theme song. Something not on the AARP playlist. On the other hand I would think Heart should be happy. Someone besides senior citizens may learn of some of their works and buy their music. The record companies should be thrilled because the senior citizen community buys their music which will boast CD sales. A win win for everyone.
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Anonymous Coward, 11 Sep 2008 @ 4:45am

Interesting . . . ?
Since as I recall they stopped using Mellencamps "our country" when he politely asked them too. I understand that they were also asked to stop using a Jackson Browne song and complied with out much fuss (even though I dont think they HAD TO in either of those cases).

This Palin gal is all about "created image" though and since most of that image is fake, they may see this song as much more important then usual (its part of the smoke and mirrors that helps create an image). Its pretty standard Republican symbolism over substance, they think thier supporters are so stupid that they will continually buy this kind of staged, fake, "image-maker" crap.
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Chuck Norris' Enemy (deceased), 11 Sep 2008 @ 5:57am

Re: Re:
...from a PR perspective

How many people really know or care (except us Techdirt lemmings)? This issue seems to come up all the time. The fact that it continues to happen shows that it doesn't really matter especially since their is no legal issue. Plus, isn't this good advertising for Heart on top of getting paid. Mike are you a corporate shill for Heart, bringing this up to give Heart some attention for their upcoming tour? =]

/notes from angry dude's playbook
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hegemon13, 11 Sep 2008 @ 6:17am

Re:
That's pretty much the same thing the U.S. did with Yankee Doodle Dandy. Adopting and flaunting the nickname the enemy gave you as a an insult can break down the enemy's morale a bit.

In this case, it seems to be the image and nickname she wants, no matter who gave it to her or why.
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hegemon13, 11 Sep 2008 @ 6:32am

Re: Re: nobody cares about the artists' views
Not so much stupid (lack of intelligence) as unwilling to think (refusing to use intelligence). I am quite conservative, but what I can't stand about the Republican party as a whole is the "with us or against us" attitude, especially in the Bush era. Disagree on one issue, you're labeled a liberal. Think for yourself, and you're a liberal. Criticize Bush, and you're a liberal. And liberalism is a mental disorder, just as their hack spokesman Savage.

To be fair, it's becoming more and more true of Democrats, too. They simply use a different approach of saying that if you have a single conservative belief, you must be stupid, brainwashed, and unworthy of a vote.

I can't wait until the two-party system finally collapses.
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Too Funny, 11 Sep 2008 @ 6:40am

Got one thing to say
Lipstick on a pig.
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Jeff Rife, 11 Sep 2008 @ 10:06am

Re: Re: If they are paying the ASCAP fees
It would be an excellent idea if the McCain campaign was trying to make a point about copyright, artist rights, and related issues.

But, since it just seems like they are treating copyright like most big companies ("if we can get away with it, then it's OK"), it's probably a bad idea, although I don't think it will make any difference in the election results.
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jonnyq, 11 Sep 2008 @ 12:45pm

Re: Re:
"Well, actually, for a commercial you do need to secure the approval of the copyright holders. So it doesn't really apply there."

For a commercial, do you get the approval of the artist or the approval of the publisher? (serious question, I don't know...) It seems I've heard plenty of songs used out of context ...

I understand what you mean about it clearly being a PR issue, but it seems a little silly to dig that deep into the political beliefs of the songwriter or primary performer(s) (which may not be the same people) to decide whether to use a song in a localized setting of your own supporters that wouldn't really care. It would also depend on the activism of the artists - if they're not very active, then it doesn't matter. But if they're the Dixie Chicks or something, I could see the point.
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Anonymous Coward, 11 Sep 2008 @ 6:44pm

How is a campaign ad not a commercial ?
They both advertise a product for sale which (they hope) will result in financial gain.
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Anonymous Coward, 11 Sep 2008 @ 7:36pm

Re:
they are not giving the money to Obama's campaign
a max of 2500 is the most they can give.

other wise they are breaking the law
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M D, 11 Sep 2008 @ 9:31pm

Re: Re: but what they can do is...
well that was pretty stuuuuupid
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JD, 12 Sep 2008 @ 9:11am

Re: Re: Re: Squashed? II
Didn't the Obama campaign have a reporter arrested for standing on a sidewalk during their convention? No. That was a Denver Poice officer, was jailed for disobeying a police officer. No relation. What about the 400+ protesters who were jailed in St. Paul? 1.No doubt ordered to do that by Obama himself 2.I believe that case law on that is disobeying a LAWFUL order of the police - HOW IS STANDING ON A PUBLIC SUDEWALK ILLEGAL? Didn't they threaten a private citizen for daring to bring up Bill Ayers? Bill Ayers? Are we still on that story? That happened just last week. Why is it whenever the Social-Fascist Democrats do something wrong the immediate response is to sweep it under the rug. As is Move-On Doesn't it bother you that Obama hangs around with a Terrorist?
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J Wardle, 15 Sep 2008 @ 9:22am

Re:
The band and their manager have already said that all the money that they get from McCain goes straight into Obama's campaign donations.
I wonder if they have violated any contribution limits yet?
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Same McSame, 9 Oct 2008 @ 7:25am

It's Hopeless
Yes, McCain is the ethical standard we need in the US right now, a real moral leader.
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