Why Do Politicians Keep Using Unlicensed Music In Commercials?
from the copyright-for-thee,-but-not-for-me dept
Why is it that politicians keep using music in commercials without getting permission first? No matter what you think of the copyright issue (and we'll get to that), it's amazing to me that any politician doesn't recognize that if he or she uses a song without permission, and the musician doesn't happen to like that politician or that politicians party or policies, that a whole news cycle will be devoted to that musician being able to bash that politician. The latest is Florida Governor, and now Senate candidate, Charlie Crist, who is being sued by former Talking Heads front-man David Byrne for one million dollars. This is similar to Jackson Browne's lawsuit against the McCain campaign (though, in that case, the commercial wasn't actually by the campaign, but a local party group).Byrne keys in on the copyright issue, but seems to jump back and forth between the moral issue and the copyright issue without realizing they're not quite the same thing:
The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."But, of course, in the US, we don't have moral rights on songs like this. While it's true that the campaign might need to license it for a commercial, Crist could easily have used it at campaign rallies (assuming the venue paid performance rights licenses) and Byrne could do nothing to stop him, no matter how upset he was that some might think he endorsed Crist's positions.
That said, you could potentially make a pretty strong fair use case in such a commercial. It would be for political, not commercial, purposes, and it's only a snippet of the song. Also, it's not like the commercial is going to replace the market for the actual song, so the effect on the market should be minimal (or even potentially positive, if it reminds people of that song and gets them to go out and buy it). That said, I would imagine Byrne's response is that it could potentially harm the market in a few ways, including the negative association of the song with a campaign, and (more convincingly) that it could potentially harm the market for Byrne to license the song to other commercial advertisements. I can see the argument either way, though I (not surprisingly) would lean towards this being fair use.
Even so, though, whether it's fair use or not, you would think that after so many examples of this sort of thing backfiring on politicians, that they would learn to check with musicians to make sure they support the politician before using the song, just to avoid the easy headlines of "big famous musician suing politician x."
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Filed Under: charlie crist, copyright, david byrne, endorsement, fair use, moral rights, music
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Oh so now we're drawing a line, eh?
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The law draws that line, not me.
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Moral rights issue
Regarding the moral rights issue you raise, it should be noted that David Byrne's suit contains a trademark claim for false endorsement. The US has always claimed that meet the moral rights obligations of the Berne Convention...but that we meet this requirement through the Lanham Act (trademarks).
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Re: Moral rights issue
Aha. Very interesting... but I can't see how the trademark claim has any weight either. I haven't seen the filing yet. Do you have it?
I just can't see how Byrne would claim that such a political use is "use in commerce" for trademark purposes. On top of that, what is trademarked? The song? Byrne himself? The Talking Heads? I'm not sure I see where the trademark claim makes sense, but perhaps I'm missing something.
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Re: Re: Moral rights issue
I haven't seen the filing, but you don't need a registered trademark to bring a false endorsement/unfair type competition claim (either under the Lanham Act or analogous common law/state laws).
If you're doing anything that falsely suggests affiliation/endorsement, you're in the same general "unfair competition" boat as a trademark infringer.
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I wonder to what degree the political position of a judge/jury could influence the outcome of a lawsuit.
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isn't that kinda the point of electing quality leaders?
m3mnoch.
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Didn't say that at all, and am a bit confused as to what I said that makes you think that.
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i want it all
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Does a politician get paid
does he get a salary
does he get to take bribes form mpaa and riaa for copyrights?
Does he get to take other industry bribes.
SO what is the definition of commercial?
Commerce, the voluntary exchange of goods, services, or both.
WHICH the politician using said artist had increased his chances to acquire such.
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Well again it is the hypocrisy
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Out Of Control
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SO I get it..
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Politicians...
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Fair use?
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Moreover, using something in a manner that falsely suggests endorsement could run afoul of trademark, unfair competition, right of publicity law, regardless of any "moral rights" issues.
The real argument would be whether the station's or venue's ASCAP/BMI/SESAC license insulates Crist from any such claim.
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Re: Why Do Politicians Keep Using Unlicensed Music In Commercials?
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Additionally, I would not feel comfortable advising going the fair use route.
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Byrne's blog
David Byrne's Journal: 05.25.10: Yours Truly vs. the Governor of Florida: "Well, using a recording of a song, or even just using that song and not the original recording, in an advertisement without permission is illegal, unless the composition has gone into the public domain. It's not just illegal because one is supposed to pay for such use and not paying is, well, theft -- it's also illegal because one has to ask permission, and that permission can be turned down."
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But it is for commercial purposes
But still, you do any asking for money, even without providing anything in return, its commercial. That's why laws regulating panhandling have held up in court. If begging for money on the street is commercial speech, then so is asking for "support" (which includes money) in a paid commercial.
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