Band Calls 1st Amendment A 'Buzzword' In (Plagiarized) C&D To Mitt Romney Over (Licensed) Use Of Song

from the campaign-supernova dept

It's election season, people. You know what that means. It means irritating and/or hysterically innaccurate advertisements. It's the time of year when roughly ninety percent of your social media "friends" become "fully vetted political pundits" to the point where you want to "throw them out of a five story window if only you could reach through your computer and get to them." And, because any creator you might believe in apparently understands that we need a little comic relief at times like this, it's that special time when politicians use tunes at campaign events, resulting in angry musicians (because they're also "fully vetted political pundits" to the point where you want to...well, you get the picture).

The list for this kind of nonsense runs long. There was that time when Heart insisted McCain stop introducing Sarah "Barracuda" Palin with their well-known song. Then there was a magical moment where former-Eagles guitarist Joe Walsh sued Republican Congressional candidate Joe Walsh (...seriously) over the use of one of his songs. Tom Petty went after Michelle Bachman. Survivor's Frankie Sullivan went after Newt Gingrich. Even Hollwood Ronald Reagan got into it with The Boss by hillariously using Born In The U.S.A. as some kind of pro-America rallying cry (when the song's message is the exact opposite).

Which brings us to Mitt Romney, who apparently played Sliversun Pickups' song Panic Switch at a campaign rally (again, hilarious) only to find a cease and desist letter in his mailbox
The rock band Silversun Pickups this week served Romney's campaign with a cease-and-desist order after it says Romney's campaign used its song "Panic Switch" at an event earlier this month.


"Seems as if the GOP is once again whimsically ignoring our great nation's laws to do whatever it wants to do, and shooting itself in the foot in the process," band representative Ken Weinstein said in a statement.

Interestingly, as with many of the aforementioned examples, Romney may well have done nothing of the sort. Most of these campaigns have a blanket license to use such music and, while the cease and desist letter reportedly also included a mention of Trademark law, they're likely covered on both ends. The blanket license takes care of copyright, and the fact that I'm fairly certain Mitt Romney is not about to launch a new career venture which in any way involves him performing as a musician should nix the trademark issue. Even if the band disagrees with Mr. Romney's politics, that isn't cause for them to exclude his campaign from using what is covered by the license for which they paid.

For what it's worth, this isn't the first time Romney has had to deal with this kind of thing, either. Both Al Green and K'naan have had recent scuffles over the use of their music. For you young kids out there, Al Green made the music your parents were listening to as you were being conceived. And for you older folks, K'naan, judging solely by his name, is apparently an alien from Rob Reid's Year Zero universe.

In any case, from the band's perspective, given the speciousness of their claims, they probably would have been better served simply voicing not only their disagreement with the Romney campaign's politics, but pointing out the absurdity of using a song with a title that is the very antithesis of a campaign working feverishly to demonstrate that it is in control. What they should not have done is hire an attorney who wrote their cease and desist letter, full of smug educational quips about copyright and trademark law, and that referred to such serious topics as the First Amendment and Fair Use in this manner:
"We anticipate that you, or your general counsel, may respond to this letter with a letter of your own using all those neat lawyerly words like “First Amendment,” “fair use” and “parody.” Please know that none of those buzzwords (or the law they represent) works for you here."
As Public Knowledge rightly points out, these are not buzzwords. They are also not "lawyerly" words. The First Amendment is more of a Constitutionly term and Fair Use and Parody are Case-Law-ly terms. Snide degredation does not a good legal notice make.


On the other hand, perhaps the band's legal team can find respite from those snide remarks in the fact that their cease and desist letter may have been plagiarized from the attorney that wrote his letter for Joe Walsh when he was (I still can't belive this) complaining about Joe Walsh. Lest your sweet little minds think that this is too funny to be real, I give you this quote from Silversun Pickup's lawyer, Tamara Milgros-Butler:

"When I needed to write a cease and desist letter, I did what almost any contract lawyer does many times day and I looked at historic forms," she says. "I simply loved the tone of this language (in the Walsh letter). And geez, I looked back when my boss raised the issue and ran a red-line comparison. While the language isn't precisely the same, I borrowed liberally from Peter's letter."
Asked whether she regrets what she did, Milagros-Butler says "I regret not looking back or thinking more. I regret not thinking more backwards to see if it was our letter or someone else's. If I thought about it more, I would have realized that we didn't represent Joe Walsh."
God bless America (please don't send a C&D letter, Irving Berlin. I totally loved White Christmas. Also, you're dead, so you probably can't hear me.).

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Filed Under: copyright, fair use, free speech, license, mitt romney, performance rights, plagiarism, silversun pickups


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  • icon
    John Fenderson (profile), 17 Aug 2012 @ 12:15pm

    Damn you

    Damn you, Sliversun Pickups, for forcing me to actually defend Mitt Romney.

    link to this | view in chronology ]

    • icon
      Wally (profile), 17 Aug 2012 @ 12:20pm

      Re: Damn you

      I have to ROFL now John Fenderson ^_^

      link to this | view in chronology ]

    • icon
      The Mighty Buzzard (profile), 17 Aug 2012 @ 12:31pm

      Re: Damn you

      If the ACLU can defend Limbaugh, you can defend Romney without breaking anyone's WTF meter.

      link to this | view in chronology ]

    • identicon
      DS, 17 Aug 2012 @ 12:47pm

      Re: Damn you

      Damn you Silversun Pickups for forcing me not to like you anymore. Really Indy when you sic your lawyer after someone who legally played a song as background music.

      link to this | view in chronology ]

    • identicon
      DS, 17 Aug 2012 @ 12:47pm

      Re: Damn you

      Damn you Silversun Pickups for forcing me not to like you anymore. Really Indy when you sic your lawyer after someone who legally played a song as background music.

      link to this | view in chronology ]

    • identicon
      DS, 17 Aug 2012 @ 12:48pm

      Re: Damn you

      Damn you Silversun Pickups for forcing me not to like you anymore. Really Indy when you sic your lawyer after someone who legally played a song as background music.

      link to this | view in chronology ]

      • identicon
        DS, 17 Aug 2012 @ 12:49pm

        Re: Re: Damn you

        Damn you Tech Dirt for triple posting.

        link to this | view in chronology ]

        • icon
          ltlw0lf (profile), 17 Aug 2012 @ 12:57pm

          Re: Re: Re: Damn you

          Damn you Tech Dirt for triple posting.

          Are you using Tor for proxying your connection? All four messages come with different snowflakes. Kinda cool.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Aug 2012 @ 1:39pm

            Re: Re: Re: Re: Damn you

            I thought it was a multi-person joke that I wasn't getting until I saw the fourth comment.

            link to this | view in chronology ]

          • icon
            Wally (profile), 17 Aug 2012 @ 2:24pm

            Re: Re: Re: Re: Damn you

            Tor Shmor. I can get the same effect when getting off my butt and out of my house to exercise using various WiFi hot spots in my neighborhood :-)

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 17 Aug 2012 @ 4:31pm

              Re: Re: Re: Re: Re: Damn you

              DS is prolly rolling down the road as we comment.

              link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Aug 2012 @ 4:21pm

            Re: Re: Re: Re: Damn you

            no

            link to this | view in chronology ]

  • icon
    jupiterkansas (profile), 17 Aug 2012 @ 12:19pm

    There are so many better and more visible ways to exact revenge on a politician than a C&D letter. Where's the creativity?

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2012 @ 1:18pm

      Re:

      They should have wrote a song about Mitt falling in love with Paul Ryan after spending long nights together, alone, in the campaign bus. It should conclude with them getting married to eachother but still having gang bangs with Obama as well as with the money printers.

      link to this | view in chronology ]

  • icon
    James Plotkin (profile), 17 Aug 2012 @ 12:19pm

    Motley Mitt

    Romney should use Dr. Feelgood by Motley Crue...that would just be hilarious! Plus I'm sure Vince Niel and co. wouldn't mind the attention (80's glam rockers usually don't).

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 12:21pm

    Defenestrate is the word you want in the first paragraph.

    link to this | view in chronology ]

  • icon
    Wally (profile), 17 Aug 2012 @ 12:30pm

    Makes me wonder.

    I'm beginning to think that these stop and desist letters are entirely politically motivated. I recall the Democratic party's rallies using songs the same way and not catching any gaffe at all. I'm not trying to be political here, but it certainly makes me think about how biased most of Hollywood and most Music artists are toward the recent administration.


    John Fenderson, I think I need your input here to help clear my mind. You up for it? :-)

    link to this | view in chronology ]

    • icon
      Dark Helmet (profile), 17 Aug 2012 @ 12:36pm

      Re: Makes me wonder.

      Nah, you don't have to wonder. These things tend to hit the GOP more than the DNC, though one would imagine if a Democrat were insane enough to play a Ted Nugent song, we'd probably see the same thing from him....

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Aug 2012 @ 12:50pm

        Re: Re: Makes me wonder.

        damn that would be funny, Obama or Biden coming out on stage to "Cat Scratch Fever".. But I doubt Ted would send a C & D ... Arrow maybe...

        link to this | view in chronology ]

      • icon
        Wally (profile), 17 Aug 2012 @ 1:01pm

        Re: Re: Makes me wonder.

        To Dark Helmut:
        "....though one would imagine if a Democrat were insane enough to play a Ted Nugent song, we'd probably see the same thing from him...."

        Lol good point :-) Though I think, in general, that some of these artists are so biased it is extremely laughable.

        To everyone else:
        Does anyone have more examples than what the article gives? Please don't make it political I just want to show you all outside the (US and a few inside as well) what we deal with in the middle of the political spectrum ^_^

        link to this | view in chronology ]

        • identicon
          PT, 17 Aug 2012 @ 2:27pm

          Re: Re: Re: Makes me wonder.

          Biased? They have their own political opinions, to which they're entitled. It would only be bias if they favored one side after publicly announcing themselves to be fair and balanced. In my opinion, having a candidate use one of their songs without permission is pretty much like having a candidate come and put a sign on my lawn without permission. If I supported him I might let it ride, but if not I'd definitely "cease and desist" it, especially if the lumber looked useful.

          link to this | view in chronology ]

          • icon
            Wally (profile), 17 Aug 2012 @ 3:08pm

            Re: Re: Re: Re: Makes me wonder.

            I call it mostly biased because if it happened to be a DNC candidate they agree with, they'd say nothing. The point I make is that you see more of it happening to one side than the other and that's what is wrong. So what if a candidate has a song that pumps them up, it's their perogative.

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Aug 2012 @ 5:48am

              Re: Re: Re: Re: Re: Makes me wonder.

              FWIW I think it would be the bands prerogative to make an Anti whoever video to the song using some footage from the convention. I could see Springsteen doing in Reagan with a Born in the USA video way back when. Now that video is much much cheaper to produce and painless to distribute quickly it is inevitable.

              link to this | view in chronology ]

    • identicon
      DS, 17 Aug 2012 @ 12:49pm

      Re: Makes me wonder.

      "I'm beginning to think that these stop and desist letters are entirely politically motivated."

      New to politics are ya?

      link to this | view in chronology ]

      • icon
        Wally (profile), 17 Aug 2012 @ 1:17pm

        Re: Re: Makes me wonder.

        Hey DS, if I were new to politics, then why would I be sick of them?

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Aug 2012 @ 1:24pm

          Re: Re: Re: Makes me wonder.

          If you are new, you probably just need a shot of penicillin. This dirty dirty can get you sick the first time you try it.

          link to this | view in chronology ]

        • icon
          That One Guy (profile), 17 Aug 2012 @ 1:31pm

          Re: Re: Re: Makes me wonder.

          You say that as though it takes any time at all to reach that point.

          link to this | view in chronology ]

          • identicon
            Wally, 17 Aug 2012 @ 2:03pm

            Re: Re: Re: Re: Makes me wonder.

            I'll be honest, being from Ohio and a voting Citizen of the US, it's sort of a double whammy from both sides of the political spectrum. You learn to lampoon it early in my state ^_^ in all honesty it took me 7 years.

            link to this | view in chronology ]

    • icon
      John Fenderson (profile), 17 Aug 2012 @ 1:30pm

      Re: Makes me wonder.

      Wally, I think the effect is pretty straightforward, as DH explained. Artists tend to be emotionally involved in their works. If an artist finds their work being used to benefit something they disagree with, they'll be upset about it, perhaps strongly upset and want it to stop. If they're upset enough, they may call their lawyers, and their lawyers will do what lawyers do.

      It's a gut emotion thing, I think.

      The thing is, as other commenters have said, artists have a potent weapon they can use to counterattack without resorting to specious legal actions: their art. A good, piercing, artistic attack can cause a lot more pain and strife for the target than a C&D.

      link to this | view in chronology ]

      • icon
        Wally (profile), 17 Aug 2012 @ 2:13pm

        Re: Re: Makes me wonder.

        I concurr :-) And I do hope and wish that there are at least some artists out there who would send a C&D to any candidate using there song regardless of politics.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Aug 2012 @ 4:36pm

          Re: Re: Re: Makes me wonder.

          All they really need to do is explain how absurdly out of touch the political user of the song is by explaining how it goes against the emotion and feeling they are trying to convey by using it.

          link to this | view in chronology ]

          • icon
            John Fenderson (profile), 18 Aug 2012 @ 3:44pm

            Re: Re: Re: Re: Makes me wonder.

            Yes, like the excellent editorial written by the guitarist from RATM detailing exactly how their band's consistent message is 180 degrees apart from Paul Ryan. It's brilliant.

            link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 12:44pm

    "the fact that I'm fairly certain Mitt Romney is not about to launch a new career venture which in any way involves him performing as a musician should nix the trademark issue."

    Of course, your certainty does not equate to reality, but don't let that stop the snark from flowing.

    link to this | view in chronology ]

    • icon
      Dark Helmet (profile), 17 Aug 2012 @ 12:56pm

      Re:

      "Of course, your certainty does not equate to reality, but don't let that stop the snark from flowing."

      FACEPALM!!!!

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Aug 2012 @ 1:04pm

        Re: Re:

        I understand what all those words mean (after all, I wrote most of them), but not what they are doing together.

        link to this | view in chronology ]

        • icon
          Wally (profile), 17 Aug 2012 @ 1:31pm

          Re: Re: Re:

          From my wife (high school English teacher) to you...oh and if it seems harsh, I apologize in advance:

          You took two sentences; one with a snide remark, the other with the point you're trying to make. Then you combined them to utter jibberish to make even more senseless statement than you already had before.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Aug 2012 @ 5:14pm

            Re: Re: Re: Re:

            Um...that's not exactly a model of clear, concise prose from her either.

            At any rate, Tim's certainty regarding Mitt's career path does not, in reality, "nix the trademark issue."

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Aug 2012 @ 7:39am

              Re: Re: Re: Re: Re:

              It does until Mitt actually performs the song in question

              link to this | view in chronology ]

    • icon
      JMT (profile), 17 Aug 2012 @ 5:42pm

      Re:

      Care to share with us your knowledge of Romney's future musical career? I mean nobody would make a comment that stupid unless they knew something we all don't...

      link to this | view in chronology ]

  • icon
    You're a Gazelle! (profile), 17 Aug 2012 @ 12:48pm

    Rage against the machine is getting in on it too. Versus Paul Ryan:
    http://thecaucus.blogs.nytimes.com/2012/08/17/rage-against-the-machine-isnt-returning-ryans-l ove/

    link to this | view in chronology ]

  • identicon
    JP, 17 Aug 2012 @ 1:03pm

    I'm no Romney fan either, but has it ever occurred to these groups that they risk alienating a large portion of their fanbase?

    Not all Republicans listen to Conway Twitty.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 1:21pm

    Whats sad is this is probably how quite a few bands really think.

    link to this | view in chronology ]

  • identicon
    Thomas, 17 Aug 2012 @ 1:26pm

    Could a band sue on the grounds that using on of their songs could make the crowd think it was implicitly supporting a candidate?

    link to this | view in chronology ]

    • icon
      John Fenderson (profile), 17 Aug 2012 @ 1:32pm

      Re:

      I doubt it, but it would depend on how it's used, I think. Also, it'd be pretty easy for a band to dispel such a notion: all they have to do is hold a press conference and scold the candidate.

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2012 @ 1:34pm

      Re:

      I don't think so. I do think however the band should have worded their letter better and more politely. Not to mention they basically issue a threat saying hey you better not mention 1st amendment, parody or fair use here.

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2012 @ 1:39pm

      The trademark claim

      >>>Could a band sue on the grounds that using on of their songs could make the crowd think it was implicitly supporting a candidate?

      This is where a potential trademark claim would come from - not the potential confusion if Romney went into the music business.

      link to this | view in chronology ]

    • identicon
      New Mexico Mark, 17 Aug 2012 @ 1:48pm

      Re:

      Looks to me like Thomas fully supports a Sarah Palin / Jesse Jackson ticket in 2016. I didn't just imply it; I actually put it in writing in a public forum.

      Will you be hauling me to court now? This should be fun!

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2012 @ 5:14pm

      Re:

      Yes. In fact that is precisely the "trademark" issue. That the article simply glosses over this point with a snide remark is telling.

      link to this | view in chronology ]

    • icon
      JMT (profile), 17 Aug 2012 @ 5:50pm

      Re:

      Why would you waste time and money suing over something so stupid? You simply put out a public statement saying that you don't like that a candidate's using one of your songs, even though you know they're allowed to. Point out what policies of theirs you disagree with, maybe throw in a few opposing personal beliefs, and (as in this case) point out the ironically inappropriate choice of song. Then, having undermined the PR value of using the song in the first place, move on with your life and find fun ways to spend the money you would've blown on a lawyer.

      link to this | view in chronology ]

    • icon
      Bergman (profile), 17 Aug 2012 @ 9:21pm

      Re:

      No more than Nike can sue someone for getting caught committing crimes while wearing shoes.

      link to this | view in chronology ]

  • identicon
    DogBreath, 17 Aug 2012 @ 1:26pm

    I can hardly wait...

    until these bands join forces (kind of like the uninformed and misled authors did in getting Lendink, a perfectly legitimate and legal business, taken down) and destroy the "political machine" with their misinformed C&D letters.

    Hey, it could happen... in an alternate universe where the peoples vote actually counts and the government hasn't already sold it's soul to corporate interests, that or take it to the Ninth Circuit (Circus) Court.

    link to this | view in chronology ]

  • icon
    sehlat (profile), 17 Aug 2012 @ 1:42pm

    Buzzwords

    I regret having to point this out, but something that's hauled out when it's convenient and ignored when it's not is a buzzword.

    Modern examples employed by the government include:
    First Amendment
    Fourth Amendment
    Fifth Amendment
    posse comitatus

    All of the above (and more) were already buzzwords before the letter cited in the article was written.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 1:48pm

    Here is the takeaway: four words

    Most musicians are stupid.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2012 @ 2:32pm

      Re: Here is the takeaway: four words

      "Most musicians aren't Republican".

      There, fixed it for you.

      link to this | view in chronology ]

      • identicon
        PT, 17 Aug 2012 @ 2:38pm

        Re: Re: Here is the takeaway: four words

        WTF posted that as anonymous under my snowflake? Use your own damn computer, FB.

        link to this | view in chronology ]

      • icon
        Wally (profile), 17 Aug 2012 @ 2:45pm

        Re: Re: Here is the takeaway: four words

        "Most musicians are stupid.
         

         insightful  funny  report 
        Re: Here is the takeaway: four words

        Anonymous Coward, Aug 17th, 2012 @ 2:32pm
        "Most musicians aren't Republican".

        There, fixed it for you."


        "Most politicians are stupid"

        There, fixed it for everyone :-)

        link to this | view in chronology ]

    • icon
      Wally (profile), 17 Aug 2012 @ 2:41pm

      Re: Here is the takeaway: four words

      8 names to counter your claim....

      1. Freddie Mercury
      2. John Lennon
      3. Paul McCartney
      4. Brian May
      5 Roger Taylor
      6. Ringo Starr
      7. John Deacon
      8. George Harisson

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 4:42pm

    "Then there was a magical moment where former-Eagles guitarist Joe Walsh sued Republican Congressional candidate Joe Walsh (...seriously)* over the use of one of his songs."

    *But Seriously, Folks...

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 5:30pm

    The funny part that the band summed up Techdirt nicely. A collection of buzzwords and lawyerly terms, strung together to make it look like something is okay.

    Go pirates go!

    link to this | view in chronology ]

    • identicon
      DogBreath, 17 Aug 2012 @ 7:25pm

      Re:

      A collection of buzzwords and lawyerly terms, strung together to make it look like something is okay.

      Go MPAA/RIAA/Patent Trolls/Copyright Lawsuit Trolls/DMCA Takedown Abusers/Corporate Shills/Ad nauseam go!


      FTFY

      link to this | view in chronology ]

    • icon
      Wally (profile), 17 Aug 2012 @ 9:05pm

      Re:

      "The funny part that the band summed up Techdirt nicely. A collection of buzzwords and lawyerly terms, strung together to make it look like something is okay.

      Go pirates go!"

      I'm sure you thought your comment was very clever, but it isn't wise to provoke the wrath of a whole community for two reasons.

      1. They will ream you for it.
      2. Makes you look really unintelligent and stupid.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Aug 2012 @ 11:57pm

        Re: Re:

        1. If they can't take the joke, then they need to grow up,
        2. your opinion has as much value to me as cow shit, which is to say, NONE. See point 1. You managed to show yourself well. Grow up.

        link to this | view in chronology ]

        • icon
          Coyote (profile), 18 Aug 2012 @ 6:21am

          Re: Re: Re:

          I dunno, you may want to rephrase the cow shit thing. Manure is used in plenty of stuff, from growing plants and food to making grass grow. It's pretty useful.

          Elephant dung would be more apt, imo.

          link to this | view in chronology ]

        • icon
          Wally (profile), 18 Aug 2012 @ 9:18pm

          Re: Re: Re:

          I was only trying to help. But that's alright, stay stupid, uninformed, and have opinions you can't back up without insulting others. You "win" based on your sanity (or lack thereof).

          link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2012 @ 7:56pm

    Whewt! Lets see Obama or Romney! Hmm I think I'll spend my extra 30 minuets on spankwire instead of voting. At least my decision for that day will actually have a positive outcum for me.

    link to this | view in chronology ]


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