Why Do Politicians Keep Using Unlicensed Music In Commercials?

Politics

from the copyright-for-thee,-but-not-for-me dept

Tue, May 25th 2010 2:29pm — Mike Masnick

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

26 Comments

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Anonymous Coward, 25 May 2010 @ 2:32pm

"It would be for political, not commercial, purposes,"

Oh so now we're drawing a line, eh?
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- Mike Masnick (profile), 25 May 2010 @ 3:19pm
  
  Re:
  Oh so now we're drawing a line, eh?
  
  The law draws that line, not me.
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  - Anonymous Coward, 25 May 2010 @ 3:36pm
    
    Re: Re:
    I'm aware of that, and my statement was tongue in cheek. Sarcasm tag needed after all?
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  - SW, 19 Jul 2010 @ 4:12pm
    
    Re: Re:
    Except perhaps in the 9th Circuit. Check the recent Central District of CA Chuck DeVore trial court decision. It pretty much goes against the rest of the country's case law and says that political ads which contain links to sites where donations are accepted are commercial in nature and are not exempt from that status simply because they are political. The 2nd Circuit would most likely disagree. In the 9th Circuit, "monetary gain is not the sole criterion, particularly in a setting where profit is ill-measured in dollars."
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C.T., 25 May 2010 @ 2:38pm

Moral rights issue
I agree with your sentiment that this is likely (at least should be) a fair use.

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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- Mike Masnick (profile), 25 May 2010 @ 3:23pm
  
  Re: 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).
  
  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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  - Anonymous Coward, 26 May 2010 @ 1:22pm
    
    Re: Re: Moral rights issue
    "Use in commerce" is a very broad concept under the Lanham Act. Basically anything Congress can regulate under the commerce clause.
    
    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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Anonymous Coward, 25 May 2010 @ 2:51pm

so wait, you are holding politicians to a higher standard than you would hold anyone else? how odd.
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- Anonymous Coward, 25 May 2010 @ 3:03pm
  
  Re:
  No, he is saying that they should be able to exercise fair use or that they shouldn't have to be subject to copy protection laws but that, given the current state of our legal system, it's practically and politically (not morally) stupid for them to have done what they did in infringing without permission. If our legal system was more reasonable then it won't be.
  
  I wonder to what degree the political position of a judge/jury could influence the outcome of a lawsuit.
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- m3mnoch (profile), 25 May 2010 @ 3:24pm
  
  Re:
  but, aside from the whole common sense "make sure the musician agrees with you politically before you play their songs on tv without their permission" gaffe, shouldn't we be holding politicians to a higher standard than "joe sixpack?"
  
  isn't that kinda the point of electing quality leaders?
  
  m3mnoch.
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- Mike Masnick (profile), 25 May 2010 @ 3:24pm
  
  Re:
  so wait, you are holding politicians to a higher standard than you would hold anyone else
  
  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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  - mkam, 26 May 2010 @ 5:11am
    
    Re: Re:
    Wait... Once again a sarcasm tag is needed. Or the AC is trolling poorly.
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- Anonymous Coward, 25 May 2010 @ 3:42pm
  
  Re:
  Some might call an aversion to capital letters odd.
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sarkozy says 1$ for you, 25 May 2010 @ 4:03pm

i want it all
and i want it now
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It would be for political, not commercial, purpose, 25 May 2010 @ 4:10pm

Does a politician get paid
does he gt benefits
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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Anonymous Coward, 25 May 2010 @ 6:56pm

Well again it is the hypocrisy
...I am generalizing..but most politicians who would think nothing of using a song without permission would also bow to their MPAA/RIAA masters and cheerfully vote to imprison file sharers for their terrible copyright violations..
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RockDJ, 25 May 2010 @ 7:58pm

Out Of Control
This whole industry is out of control. This model is not sustainable into perpetuity. Pretty soon the backlash will happen and those that don't adapt will struggle to survive. They've fought every new innovation by hook or by crook. They may get their way for now but remember the internet is global and the U.S doesn't control it no m,atter how much they would like to think they do.
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DMNTD, 25 May 2010 @ 8:18pm

SO I get it..
With all this said and done why can't we yet present the final question!?!? DO they care? It does not appear that they do so Mike. They don't care, maybe more than one of you around don't see this as a important subject but I for one can see why they don't care about laws when just like so many authoritative figures in most situations are beneath that law radar that citizens have to gracefully and unwittingly sign up for.
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Thomas (profile), 26 May 2010 @ 7:49am

Politicians...
Always think they are above such trivial things as the law or moral codes. Since they have no problem taking "campaign contributions" and "gifts" (money, drugs, hookers) from anyone who can pay, why would they give a rats tushie about this? However at the same time they want to send file sharers to prison.
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BBT, 26 May 2010 @ 8:43am

Can't we just implement a 3 strikes policy here? Get accused of copyright infringement in political ads three times, and you're banned from running for elected office for life?
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Dave, 26 May 2010 @ 9:46am

Fair use?
I'm in the UK and we don't seem to have such a thing as "fair use" but, as I understand it, that condition in the States applies to quotes and clips used as examples, critique, etc; NOT wholesale lifting of work for use as a political statement, or anything else for that matter. From what I read, this seems to be a clear case of copyright infringement, together with the inference that the artist is supporting the politician concerned and, in my opinion, the case should be taken all the way.
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Anonymous Coward, 26 May 2010 @ 1:05pm

I think the "political, not commercial" fair use argument is weak, at best.

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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- robert rosenblatt (profile), 30 May 2010 @ 9:45am
  
  Re: Why Do Politicians Keep Using Unlicensed Music In Commercials?
  I would not rely on the performance license at all. Additionally, what is a performance license but another right granted by the copyright holder, a parallel revenue stream payable to the same copyright holders for a synchronization license. Also, this is a composition and master recording situation, so if there is a performance license in play then you cannot act like the master right needs to be addressed. I would not advise user to go that route at all.
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  - robert rosenblatt (profile), 30 May 2010 @ 9:58am
    
    Re: Re: Why Do Politicians Keep Using Unlicensed Music In Commercials?
    re #23 sorry that should have read " you cannot act like the master right does not need to be addressed"... sorry for the double negative (I'm not able to delete or edit the entry).
    
    Additionally, I would not feel comfortable advising going the fair use route.
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Suzanne Lainson (profile), 26 May 2010 @ 2:11pm

Byrne's blog
Maybe I missed it, but I don't think a link was posted to Byrne's blog on the subject.

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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Boraxo (profile), 1 Jun 2010 @ 12:53pm

But it is for commercial purposes
Every one of these politicians is asking for donations. Oh, its indirect: here's my web site URL, and within there, here's my appeal for money.
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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