Author Jonathan Franzen Thinks That Ebooks Mean The World Will No Longer Work

Like Clockwork: Copyright Holders Mistakenly Freak Out About Presidential Candidates Using Their Music

from the again? dept

Tue, Jan 31st 2012 10:16am — Mike Masnick

This seems to happen every four years like clockwork during Presidential elections. Some musician gets upset about a politician he or she disagrees with, making use of his or her music during campaign rallies. This time around the candidate is Newt Gingrich, and the upset musician is songwriter and member of the band Survivor, Frank Sullivan, who co-wrote the song "Eye of the Tiger" which Gingrich has apparently been using during presidential campaigns:

The complaint states that the violation it alleges is intentional since Gingrich is "sophisticated and knowledgeable" concerning copyright laws.

That strikes me as interesting, because I would have to assume that the campaign has paid for standard ASCAP performance license (either that or the locations they use almost certainly have such a license). And if that's true, then Sullivan has no case. If the venue has a license, they can play whatever they want. Full stop. "Eye of the Tiger" is registered to ASCAP, so that's all that's needed. The campaign doesn't need permission of the copyright holder. The Chicago Sun-Times goes into more detail, where Sullivan insists this isn't political, he just doesn't like the song being used without him getting paid. Perhaps he should check his ASCAP statement. If he's not getting paid, he might want to take it up with them.

That same article also notes that Sullivan co-owns the copyright along with his song writing partner/bandmate, Jim Peterik, who seems to both (sorta, kinda) like Gingrich and not like legal actions:

“My wife is a big fan,” Peterik said. “I’m becoming a fan of Newt Gingrich. He has a mind of his own. He’s not a talking head. Originally, I didn’t like him, but look at the competition. He’s looking better and better.”

Peterik is not a party to the suit that Sullivan filed in U.S. District Court in Chicago. They share the copyright, but tend to stay out of each other’s way when it comes to cracking down on infringers.

”I hate suits,” Peterik said. “I hate being in court. I avoid that meticulously. When I [heard about the lawsuit on the radio Monday} I said I’m not surprised, but I’m surprised.”

I say this every time something like this comes up, but even if politicians can make use of such songs without getting permission from the artists, thanks to ASCAP/BMI/SESAC performance licenses, it still surprises me that the campaigns don't seek out musicians who support them in the first place to get their "okay" just to avoid embarrassing situations like this. Either way, it seems almost certain that this lawsuit is going nowhere fast.

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Filed Under: eye of the tiger, frank sullivan, newt gingrich, performance licenses, presidential campaigns, rallies, songs, survivor
Companies: ascap, rude music

81 Comments

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Skeptical Cynic (profile), 31 Jan 2012 @ 9:34am

The lawsuit is not the point
It has always been about getting more money. I dare anyone to prove me wrong.
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Anonymous Coward, 31 Jan 2012 @ 10:20am

Most campaign stops do not occur in locations that would have ASCAP licensing in place.
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Anonymous Coward, 31 Jan 2012 @ 10:27am

Re:
Does the campaign itself have a license? From the above article:

"That strikes me as interesting, because I would have to assume that the campaign has paid for standard ASCAP performance license (either that or the locations they use almost certainly have such a license). And if that's true, then Sullivan has no case."
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Anonymous Coward, 31 Jan 2012 @ 10:30am

Eye of the Tiger...sigh. Really?

I'm waiting on the candidate that uses Head Like a Hole for their campaign theme song.

[disclosure: it's my own personal theme song.] ;D
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Nathan F (profile), 31 Jan 2012 @ 10:30am

Does Newt have videos on his webpage that include the song, either for streaming or as a short demo clip to entice a purchase of a DVD? If so then that could very well run afoul of both performance and streaming rights..

My my.. copyright sure is complex.
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John Doe, 31 Jan 2012 @ 10:32am

Don't bite the hand that feeds you
The movie and music industry is spending heavily on paying the government to write protectionist laws, so they better play nice with the politicians if they want them to sign the bills.
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Anonymous Coward, 31 Jan 2012 @ 10:35am

"If the venue has a license, they can play whatever they want. Full stop"

Well, it's not necessarily that simple.
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Nathan F (profile), 31 Jan 2012 @ 10:35am

Re: Don't bite the hand that feeds you
This isn't the major studios (BMI, Sony etc) doing this, this is the individuals who wrote and composed the song doing this on their own behalf (they managed to keep the copyright on their stuff, I suspect many lawyers lost their heads the day that contract was signed..)
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Marcus Carab (profile), 31 Jan 2012 @ 10:37am

Re:
Well, it's not necessarily that simple.

Isn't it?
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Rob, 31 Jan 2012 @ 10:40am

"I would have to assume that the campaign has paid for standard ASCAP performance license"

Why? It's something I can easily see falling through the cracks.
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Anonymous Coward, 31 Jan 2012 @ 10:42am

so, have i got this right? the music and movie industries want politicians to introduce, then bring into law, Bills that help those industries to keep their old business models and not have to adapt to the 'digital world', and at the same time enable them to close down competing websites and sue anyone they feel like for copyright infringement. at the same time, they then force those politicians to stop using music or whatever that will help them in their campaign to get (re)elected and help get those Bills passed. so, are these the right people to piss off, do you think? i think those industry execs must have the word 'STUPID' tattooed across their foreheads!
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John Doe, 31 Jan 2012 @ 10:44am

Re: Re: Don't bite the hand that feeds you
Yes, but since he is suing I can only assume that he is for SOPA and therefore would want Newt to sign the bill if he becomes president. So suing him now won't make Newt to friendly to the industry later.
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Nathan F (profile), 31 Jan 2012 @ 10:44am

Re:
Again, this isn't the major studios (Sony, BMI, et al), this is two individuals bringing forth suit.
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:Lobo Santo (profile), 31 Jan 2012 @ 10:46am

Re: Settle
Really, I'd settle for one that uses any song from the NIN Pretty Hate Machine album...
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Anonymous Coward, 31 Jan 2012 @ 10:49am

Re: Re:
No, for a number of reasons. First, ASCAP licenses are limited, and the manner in which the song is used might not fit limitations of the license. One example could be use of the song in connection with a "dramatic" use (i.e. the telling of a story). Are they using the song while telling Newt's life story? That could create a gray area as to whether the use is covered by the license.

Second, repeated use of a song as a "theme" could imply some sort of endorsement, which may implicate rights that ASCAP does not have the power to grant.

Now, those are hypotheticals that may have no basis in the real facts, but they are examples of how an ASCAP license *might* not give all the protection needed for certain uses of songs.
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:Lobo Santo (profile), 31 Jan 2012 @ 10:49am

Re: STUPID tattoo
Seeing as most of those guys cannot tell their head from their ass--the 'STUPID' tattoo which was supposed to be in mirrored letters on their forehead somehow ended up tattooed across their buttocks, I imagine.
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Geed (profile), 31 Jan 2012 @ 10:50am

Frankie Sullivan's been down since he lost in court over the name Survivor vs. the tv show.
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Marcus Carab (profile), 31 Jan 2012 @ 10:58am

Re: Re: Re:
Perhaps. But those really seem like reaches. This clearly falls smack dab in the middle of what ASCAP licenses are intended to cover. And endorsement wouldn't be a copyright issue at all. But, fair enough: it's not always that simple "full stop."
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zegota (profile), 31 Jan 2012 @ 10:59am

Really?
I would have to assume that the campaign has paid for standard ASCAP performance license

Newt Gingrich's campaign failed to file the paperwork in time to qualify for the Virginia ballot. You really can't fathom them forgetting an ASCAP license?
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Another AC, 31 Jan 2012 @ 10:59am

Re:
Then they pay it after the fact and we all move on with life, no need to sue! :)
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The eejit (profile), 31 Jan 2012 @ 10:59am

Re: Re: Re:
why the fuck should you need three middlemen just to play a song in a venue?
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Anonymous Coward, 31 Jan 2012 @ 11:01am

Just to be clear, Mike. You have no evidence that the distribution, reproduction, or public performance were licensed, but you're willing to declare the defendants the probable victors. Hell, your headline declares that the suit was brought "mistakenly."

And obviously you didn't bother to read the complaint (took me three seconds to find it on Google), or else you'd know that one of the claims is that the defendants took videos including the copyrighted songs and posted them on the internet.

Why is it you demand other people's claims to be fact-based, but then you write complete faith-based FUD like this? What gives, Mike? I don't get it.

And, honestly, if you're too lazy to do the least amount of journalistic legwork with an easy story like this, why shouldn't we all just assume you're being doubly as lazy with the hard stuff? Sigh.
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Anonymous Coward, 31 Jan 2012 @ 11:02am

Re: Re: Re: Re:
I didn't say you should.
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Anonymous Coward, 31 Jan 2012 @ 11:03am

Re:
[Citation please]
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Anonymous Coward, 31 Jan 2012 @ 11:03am

Re: Re: Re: Re:
I seem to recall David Byrne bringing some sort of implied endorsement claim against a politician doing the same sort of thing, but maybe the facts were different.

Anyway, you're right that these theories may not be applicable at all, but the "full stop" certainty may be misleading.
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Robert (profile), 31 Jan 2012 @ 11:06am

Getting paid?
Well Frankie Sullivan, how about writing something new that sells if you want to make money. You know, work for your income like the rest of us.

No other industry gets paid for past work and people who think that's a business model, especially in this day and age, have no clue how to survive.

Sullivan, you are not a Survivor, pun intended. Get over it. You should be thankful they chose your song Eye of the Tiger, as that gains popularity for your music. Yeah, some will download, but others will search for their cassettes, realize they don't have a functioning tape deck, and possibly buy it on iTunes.

That's free advertising for your old work. Maybe drawing attention to yourself in the process and maybe, just maybe, people will look at what new material you've written.

Or are you just like Novel and Kodak? Can't innovate and create, so your tired old butt decides to litigate!

Get over yourself man, grab your guitar, tease your hair, and write something new! Continue working if you want to be paid!
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Hephaestus (profile), 31 Jan 2012 @ 11:07am

Re: Re: Settle
I would prefer some "Smiths".
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Anonymous Coward, 31 Jan 2012 @ 11:08am

Re:
What do distribution and reproduction have to do with anything involved here?

If you're so quick to judge here, why shouldn't we all just assume you're being doubly as much of an asshole as we think you are?
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Anonymous Coward, 31 Jan 2012 @ 11:11am

Near time to wind the alarm clock.

The label is getting paid, who cares what the artist thinks?
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Hephaestus (profile), 31 Jan 2012 @ 11:13am

Re:
"Most campaign stops do not occur in locations that would have ASCAP licensing in place."

Not that it would matter. When was the last time ASCAP paid someone that isn't a top 200 artist, and lets face it Sullivan isn't. Perhaps he should take the lack of compensation up with ASCAP.
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crade (profile), 31 Jan 2012 @ 11:14am

Re: Re:
Now that they have "fixed" all the laws so we can't build things anymore, so what else is there to do? Theres always a "need" to sue nowadays. Always. Mostly because it keeps us from making stuff.
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crade (profile), 31 Jan 2012 @ 11:15am

Re: Re:
and by two individuals, you mean those the major studios always claim they represent.
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Anonymous Coward, 31 Jan 2012 @ 11:18am

Re: Re:
The complaint alleges unauthorized/unlicensed distribution, reproduction, and public performance. I have no idea if the suit has merit, but obviously the attorneys representing the plaintiff think it does.

But that's beside the point. The point is that Mike is just regurgitating what he read from other sites that have "real" reporters, and he's not even bothered to read the complaint before declaring that the defendants will win. It's a complete joke, and I'm calling him out for it--again. He just assumes that the defendants probably have a license and therefore all is well.

And if he's this terrible with the really easy stuff, God knows how many intellectual corners he cuts with the hard stuff.
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crade (profile), 31 Jan 2012 @ 11:21am

Re:
Don't just read the headline, man. The article mentions directly that the reason Mike believes the lawsuit to be a mistake is based on the reasonable assumption that the politician is licensed with asshat for the performance.
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Anonymous Coward, 31 Jan 2012 @ 11:27am

Re: Re: Re:
It's no secret that Mike makes assumptions that jive with his worldview and demands the utmost rigor from those he disagrees with.

The thing is, the TD commentariat mostly doesn't care, because they are on the same page.
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Anonymous Coward, 31 Jan 2012 @ 11:27am

Re: Re:
"the reasonable assumption that the politician is licensed with asshat for the performance."

Why is that a reasonable assumption?
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crade (profile), 31 Jan 2012 @ 11:29am

Re: Re: Re: Re:
You are right, it is no secret.. Particularly when you directly state your starting assumptions in the article.
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crade (profile), 31 Jan 2012 @ 11:32am

Re: Re: Re:
Because it's common practice to do so, but whether it is reasonable or not doesn't really matter as long as the assumption is declared as a starting point.
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W Klink (profile), 31 Jan 2012 @ 11:35am

Synchronization rights
My understanding is that "synchronization rights" are not covered under the standard ASCAP license, so you can't make a video with your ASCAP-licensed music as a soundtrack and then show that video. And that appears to be exactly what they did.
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Franklin G Ryzzo (profile), 31 Jan 2012 @ 11:36am

Re:
You don't think March of the Pigs would be more appropriate?

Also, the voters theme song would probably be Hurt...
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Marcus Carab (profile), 31 Jan 2012 @ 11:36am

Re: Re: Re: Re: Re:
Yah I had forgotten about that - unfortunately Byrne, like many artists, seemed unclear on the difference between copyrights and publicity/endorsement rights (which don't even exist most of the time)

http://www.techdirt.com/articles/20100525/0237319558.shtml
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Jim_G, 31 Jan 2012 @ 11:38am

What I find strange is that Frank Sullivan doesn't demonstrate the most basic understanding of ASCAP licensing and how it works. Virtually every news report I've read mentions "of course ASCAP licensing might take takes care of this." Is Frank really that clueless about fundamental legal issues? Does he think that every person who buys an old copy of Rocky is going to send him a check for $.00012?
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Jeremy Lyman (profile), 31 Jan 2012 @ 11:43am

Re: Re: Don't bite the hand that feeds you
But that may be a really interesting public demonstration or protest; being extremely diligent and litigious concerning copyright infringement by legislators. How many representatives would land on the hook for almost two million dollars in mp3 download infringements before the call to action was heard?

Anyone out there hold a copyright they can exercise? (raise your hand if you've taken a picture or composed an email.)
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Anonymous Coward, 31 Jan 2012 @ 11:43am

In the current climate I say this is an embarrassment alright but not for Newt Gingrich(Who I don't like by the way).
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fb39ca4, 31 Jan 2012 @ 11:43am

Oh no! You can read a book on a computer! It's the end of the world!
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fb39ca4, 31 Jan 2012 @ 11:43am

Oh no! You can read a book on a computer! It's the end of the world!
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todd smith, 31 Jan 2012 @ 11:44am

Re:
I prefer "Let it Rain, Bitch" :)
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Anonymous Coward, 31 Jan 2012 @ 11:45am

Re: Don't bite the hand that feeds you
You do realize this was the ARTIST not the record label, riiiiight?
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Alessar (profile), 31 Jan 2012 @ 11:56am

Savvy Artists
Just once I'd like an artist to issue a press release: "We have heard that such-and-such candidate is using our song as part of their campaigning. We just want to make it clear that the use of the song is under the auspices of the standard blanket licensing system that lets music be played at public events, and should not be considered an endorsement by us.
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Anonymous Coward, 31 Jan 2012 @ 12:07pm

Re: Re: Re: Re:
It's no secret that Mike makes assumptions that jive with his worldview and demands the utmost rigor from those he disagrees with.

You can't fire off 60K+ blog posts AND do your homework, that's for sure. Strange that someone so obsessed with facts himself has little use for them.
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Loki, 31 Jan 2012 @ 12:10pm

Re: Re: Settle
Even if they were a democrat or republican, I'd personally be tempted to vote for anyone who had the balls to use Kid Rock's American Bad Ass uncensored.
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Anonymous Coward, 31 Jan 2012 @ 12:13pm

Re: Re:
Don't just read the headline, man. The article mentions directly that the reason Mike believes the lawsuit to be a mistake is based on the reasonable assumption that the politician is licensed with asshat for the performance.

Those types of licenses wouldn't necessarily or likely license the defendants to make videos including the copyrighted work and then distribute those on the internet. All I'm saying is that Mike could have done even the slightest bit of digging around before jumping right in and calling it for the defendants. Talk about faith-based "reporting." Sigh.
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The eejit (profile), 31 Jan 2012 @ 12:19pm

Re: Re: Re: Re: Re:
My bad. I'm really sensitive to certain anonymous morons.
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Someantimalwareguy (profile), 31 Jan 2012 @ 12:27pm

Re: Re: Settle
Really, I'd settle for one that uses any song from the NIN Pretty Hate Machine album...
I lean old school with Comfortably Numb from the Wall album - at least it would have some truth in it if it was played at a Romney rally...
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Anonymous Coward, 31 Jan 2012 @ 12:31pm

Re: Re: Re: Re:
I, myself, love lawsuits like this, and this one in particular since the artist freely admits this isn't about politics but about him getting paid (which is the argument we hear again and again and again from both the industry and the politicians about why these bills they push are needed).

I would love for a case like this to make it to court (it wouldn't, somebody would pay the artist off to go away) for him to win, and for Newt to have to pay the sort of "damages" your typical "joe nobody" would have to pay. Then we'll see how Congress feel about current copyright law.
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Anonymous Coward, 31 Jan 2012 @ 12:33pm

This is exactly how a law like SOPA would be (ab)used. It could easily stop political ads and websites because of some bogus copyright infringement claim.
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Anonymous Coward, 31 Jan 2012 @ 12:33pm

Re: Getting paid?
Agreed
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Loki, 31 Jan 2012 @ 12:34pm

Re: Re: Getting paid?
Seconded
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Anonymous Coward, 31 Jan 2012 @ 12:39pm

Re: Re: STUPID tattoo
Ha, maybe it was a transfer image from forehead to asscheeks.
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Anonymous Coward, 31 Jan 2012 @ 12:40pm

Re: Re: Re: Re: Re:
Where's YOUR homework, son?
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Anonymous Coward, 31 Jan 2012 @ 12:41pm

Re: Re: Re: Re: Re:
New tactic now?
You want to discredit Mike so your claims of harm to monopolies can be viewed as valid?
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ookboo, 31 Jan 2012 @ 12:45pm

War Pigs!
I think I'll put together an election 2012 video now with "War Pigs" playing in the background. Mixing music and poligimatics. I like it.
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Anonymous Coward, 31 Jan 2012 @ 12:52pm

It's that time of the year again.

Quote:
Come on, let's twist again, like we did last summer
Yeah, let's twist again, like we did last year

Do you remember when, things were really hummin'
Yeah, let's twist again, twistin' time is here

CHUBBY CHECKER - Let's Twist Again
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Anonymous Coward, 31 Jan 2012 @ 12:54pm

Re: Re:
I prefer THE MARCELS - Blue Moon(capital letters due to copy&paste)
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Anonymous Coward, 31 Jan 2012 @ 12:57pm

Re: Re:
My grandma still gets regular checks from ASCAP based on my grandpa's old works. He certainly isn't, and never was, a top 200 artist.
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Anonymous Coward, 31 Jan 2012 @ 12:59pm

Re: Re: Re: Re: Re: Re:
What suggests that he was unclear on the difference between the two?

I mean, Mike *says* that, but Mike's gloss on actual facts isn't worth much (in my opinion), and the quote doesn't really suggest any confusion. I mean, saying it's about copyright "and" something else doesn't imply conflation of the two.
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Anonymous Coward, 31 Jan 2012 @ 1:01pm

Re: Re: Re: Re: Re: Re:
I can't answer for the other AC, but I'd rather see Mike stop posting misleading, shoddy stuff than just discredit him for his misleading, shoddy stuff.
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Anonymous Coward, 31 Jan 2012 @ 1:03pm

Re: Re: Re: Re:
I guess I'll just title this post "Response to a Child Molester", since I assume you are a child molester.

That doesn't detract from the worth of my post, though, right? Since I'm declaring my assumptions?
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Marcus Carab (profile), 31 Jan 2012 @ 1:22pm

Re: Re: Re: Re: Re: Re: Re:
Hmm... I suppose that's another way of reading it, yeah. As in, he is saying he would not license the copyright BECAUSE he doesn't want to endorse them - but not actually claiming that copyright includes endorsement rights. You may be right - it's hard to say with only a single edited quote, and unfortunately the Billboard piece doesn't offer much more. It still looks to me like he is a little unclear on the difference, though.
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Hephaestus (profile), 31 Jan 2012 @ 1:23pm

Re: Re: Re: Settle
Better yet "So Hot".
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DH's Love Child (profile), 31 Jan 2012 @ 1:23pm

Re: Re: Re: Settle
I think Welcome to the Machine from Wish You Were Here would seem more appropriate.
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Anonymous Coward, 31 Jan 2012 @ 1:25pm

Re: Re: Re: Re: Re: Re: Re: Re:
Part of the problem might be that the typical guy doesn't know much about the intricacies of ASCAP licensing and whatnot, so they might assume that anyone playing Byrne's music got permission from Byrne himself.
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Marcus Carab (profile), 31 Jan 2012 @ 1:30pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, in that case it wasn't even specifically an ASCAP thing since the actual lawsuit was over use in a commercial that was definitely unlicensed.

But I think what you say about ASCAP is more or less the point Mike made in the Byrne post: that thinking copyright licensing is the same as endorsement is simply incorrect, since there are significant ways (like ASCAP, mechanical licenses for covers) that people can legally use a copyrighted work without any endorsement from or even any contact with the creator. So while it may bother Byrne that some people are confused on that issue, the fact is that a license does not imply endorsement - and it's not helping anyone to further that myth, nor is it helping him to think he can rely on copyright for that purpose.
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Anonymous Coward, 31 Jan 2012 @ 3:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"So while it may bother Byrne that some people are confused on that issue, the fact is that a license does not imply endorsement"

I don't think that's an accurate conclusion to draw. While a valid license doesn't actually require any endorsement in many cases, the perception of endorsement is what matters.

So, if, hypothetically, 75% of the population thinks the license is tantamount to endorsement, then I think it does "imply" endorsement in a descriptive sense (as opposed to a prescriptive sense), even if it shouldn't.
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Marcus Carab (profile), 31 Jan 2012 @ 4:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Yeah, there's definitely a sense it which it is an implication of endorsement. But the flipside is that copyright is no protection against that, nor is it supposed to be. So while Byrne can be annoyed, and he can sue for copyright infringement, he can't (for example) present "implied endorsement" as evidence of damages or anything like that - though there may be damage, it has nothing to do with the rights being infringed. So that's what I mean when I say endorsement is a non-copyright issue, and that he's not really doing himself or anyone else any favours by acting as though it adds weight to his claim.
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Ryan Farmer, 31 Jan 2012 @ 4:58pm

If anyone deserves to choke on ridiculous copyright violation "damages"...
it is the asshole politicians that passed the laws that brought it about.

I'd enjoy watching Newt get slapped with the kind of $200,000 per incident fines that the law slaps Joe Citizen with all the time.

If it happens more, maybe they'll stop passing stupid laws.
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Anonymous Coward, 31 Jan 2012 @ 5:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"he can't (for example) present "implied endorsement" as evidence of damages or anything like that "

Sure he can. He can do so by bringing claims other than copyright infringement (e.g., unfair competition, right of publicity, etc.), which is exactly what he did.
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Marcus Carab (profile), 1 Feb 2012 @ 6:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Clearly I meant *in a copyright suit*

His statement shows that he thinks the whole endorsement issue lends weight to his copyright claim. It doesn't. That's all I'm saying.
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crade (profile), 1 Feb 2012 @ 7:46am

Re: Re: Re: Re: Re:
lol, no, it doesn't. There is no detracting from the worth of your post :)
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Anonymous Coward, 1 Feb 2012 @ 10:10am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I think we have different interpretations of his statement.
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Marcus Carab (profile), 1 Feb 2012 @ 11:08am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I think that became clear quite some time ago :P
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