Questionable Fair Use Decision Allows Celebrities To Block Publication Of Newsworthy Photos

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

from the campaign-supernova dept

Fri, Aug 17th 2012 11:54am — Timothy Geigner

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

78 Comments

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

Damn you
Damn you, Sliversun Pickups, for forcing me to actually defend Mitt Romney.
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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?
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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).
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Wally (profile), 17 Aug 2012 @ 12:20pm

Re: Damn you
I have to ROFL now John Fenderson ^_^
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Anonymous Coward, 17 Aug 2012 @ 12:21pm

Defenestrate is the word you want in the first paragraph.
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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? :-)
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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.
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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....
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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.
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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.
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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.
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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.
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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/
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DS, 17 Aug 2012 @ 12:49pm

Re: Re: Damn you
Damn you Tech Dirt for triple posting.
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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?
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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...
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DS, 17 Aug 2012 @ 12:51pm

Re:
Awww, rich people telling me how to lead my life....

"Boo The Corporate System Maaaaannnnn" "Brought to you by the fine people at Coca-Cola, and Viacom."
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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!!!!
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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.
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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 ^_^
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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.
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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.
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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?
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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.
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Anonymous Coward, 17 Aug 2012 @ 1:21pm

Whats sad is this is probably how quite a few bands really think.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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!
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Anonymous Coward, 17 Aug 2012 @ 1:48pm

Here is the takeaway: four words
Most musicians are stupid.
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JEDIDIAH, 17 Aug 2012 @ 2:01pm

Re: Buzzwords
All of those things were "buzzwords" long before they were embodied in "Amendments".
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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.
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Wally (profile), 17 Aug 2012 @ 2:06pm

Re: Re: Re: Re: Makes me wonder.
It's the entire backdoor reason the voting age was lowered to 18 years.
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Wally (profile), 17 Aug 2012 @ 2:09pm

Re: Re: Re: Makes me wonder.
You and DH made me chuckle ^_^
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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.
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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 :-)
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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.
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Wally (profile), 17 Aug 2012 @ 2:29pm

Re: Re:
"Awww, rich people telling me how to lead my life....

'Boo The Corporate System Maaaaannnnn' 'Brought to you by the fine people at Coca-Cola, and Viacom.' "

Awww ^_^ a troll failing miserably when he has nothing intelligent to say or do ^_^
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Anonymous Coward, 17 Aug 2012 @ 2:32pm

Re: Here is the takeaway: four words
"Most musicians aren't Republican".

There, fixed it for you.
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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.
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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
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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 :-)
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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.
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the defenestrator (profile), 17 Aug 2012 @ 3:34pm

Re:
Ah, so you know Ermintrude Inch, too!
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Anonymous Coward, 17 Aug 2012 @ 4:21pm

Re: Re: Re: Re: Damn you
no
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Anonymous Coward, 17 Aug 2012 @ 4:22pm

Re: Re: Re: Re: Re: Damn you
no
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Anonymous Coward, 17 Aug 2012 @ 4:22pm

Re: Re: Re: Re: Re: Re: Damn you
refreshed
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Anonymous Coward, 17 Aug 2012 @ 4:23pm

Re: Re: Re: Re: Re: Re: Re: Damn you
HMMMM only each article gives different avatar.
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Anonymous Coward, 17 Aug 2012 @ 4:31pm

Re: Re: Re: Re: Re: Damn you
DS is prolly rolling down the road as we comment.
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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.
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Anonymous Coward, 17 Aug 2012 @ 4:39pm

Re: Buzzwords
http://www.merriam-webster.com/dictionary/+buzzword
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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...
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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."
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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.
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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!
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abc gum, 17 Aug 2012 @ 5:36pm

Re:
Yeah, that's a good one ...
Ryan likes the music but not the words - apparently he doesn't know what the songs are about.

Here is another write up:
Tom Morello: 'Paul Ryan Is the Embodiment of the Machine Our Music Rages Against'
http://www.rollingstone.com/music/news/tom-morello-paul-ryan-is-the-embodiment-of-the-mach ine-our-music-rages-against-20120816
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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...
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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.
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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
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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.
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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.
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Bergman (profile), 17 Aug 2012 @ 9:21pm

Re:
No more than Nike can sue someone for getting caught committing crimes while wearing shoes.
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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.
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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.
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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.
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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.
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Wally (profile), 18 Aug 2012 @ 9:14pm

Re: Re: Re: Re:
Elephant dung has it's uses too.

Artist Chris Ofili uses elephant dung in his paintings:
http://en.wikipedia.org/wiki/Chris_Ofili

And....

Elephant dung can also be made into an eco-friendly paper:
http://www.elephantdungpaper.com/fact.html
I chose this site because of its cheeky use of phonetics for the word "sheets".
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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).
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Anonymous Coward, 20 Aug 2012 @ 7:39am

Re: Re: Re: Re: Re:
It does until Mitt actually performs the song in question
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jupiterkansas (profile), 21 Aug 2012 @ 9:47am

Re: Re:
I'd buy that for a dollar.
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