McCain Wrongly Slammed as Copyright Infringer

John McCain is not a popular candidate among celebrity musicians and actors. My beloved Doonesbury ran a terrific week of strips making this point hilariously, with a Hollywood agent trying to line up a celebrity gala, starting here. There are no pretentious will.i.am/Scarlett Johansson videos for McCain.

But political disagreement with the man is no reason to make improper empty threats of copyright infringement suits against his campaign. As Politico reports, there has been a steady drumbeat of such bogus IP claims:

Cease-and-desist letters from musicians have rained down like confetti on Republicans over the years. But nothing compares to the virtual commune full of left-leaning artists who are mad at John McCain right now, though, in most cases, they have no legal basis to stop him from using their songs.

Some of the objections come from those whose songs get played at rallies or events — such as blasting Barracuda by the band Heart to welcome “Sarah Barracuda” Palin to the ticket at the GOP Convention. But apparently the campaign has purchased traveling blanket licenses from ASCAP and BMI. That provides public performance rights to almost any mainstream tune the Republicans might want to play at a live event. This is pretty much open and shut in McCain’s favor, at least on copyright issues.

Other complaints stem from TV advertisements. For example, Mike Myers threatened suit over a quick clip from Wayne’s World used in one of McCain’s ads attacking Obama’s supposed “celebrity.” (“We’re not worthy!”) The copyright issues are murkier when it comes to use of clips in television commercials, where the ASCAP and BMI licenses do not apply. But as I have argued before, these sorts of uses are clearly fair use: they are transformative, brief, and have little or no market effect.

I understand celebrities who want to prevent John McCain from borrowing any of their cachet to run for president. I don’t support him either. But bogus IP claims harm overall public discourse by discouraging people from exercising their rights to draw on content legally when communicating their ideas. All of us lose out when that happens.

Even worse is the suggestion that trademark or publicity rights might address a false impression that heart endorsed McCain. These weak theories should not trump the access provided under copyright law. Trademark fair use doctrine certainly has weaknesses, but I hope it is robust enough to prevent celebrities from strangling public debate with such a tenuous argument.

Besides, in this case the whole IP angle is unnecessary. Public denunciation of candidates by the celebrities they draw on does more than a lawsuit to right any wrong and correct any mistaken notion of endorsement. It can even become a phenomenon all its own. After all, what’s the last time you wondered, “Who do the Wilson sisters support for president?” Now you know.

5 Responses to “McCain Wrongly Slammed as Copyright Infringer”

  1. It’s not just that it allows the Wilson sisters to go on the record.

    I’ve proposed before a new standard of behavior, originally aimed at internet discourse. In addition to “legal”, “ethical”, and “moral” standards, there is “not being a jerk”. Sure, the McCain/Palin campaign can legally use “Barracuda”, and it raises neither moral nor ethical qualms, to continue to use it after the Wilson sisters explicitly requested that you not do so counts makes you a jerk.

    Is “not being a jerk” binding? No. There are plenty of situations where it’s essential that someone be the jerk, and the world is better off for someone having been the jerk. But you’re still a jerk.

  2. John:

    As a general matter, I very much like your proposed standard. It can be tricky though. So here’s some questions:

    playing the Barracuda song was just a little flourish, but what if it were really a superior way of communicating an idea? I think the Ralph Nader “Priceless” ad, to which Mastercard objected (and sued and lost), may fall into this category. Nader won the lawsuit, but was he being a jerk under the Armstrong Theory? A justifiable jerk?

    And, related question: does making a baseless legal claim also fall into the “being a jerk” category?

  3. I wouldn’t be so quick to dismiss the “endorsement” theory. Music, unlike lots of other things, does create an almost IMMEDIATE connection to the artist–hence the reason that lots of advertising campaigns go out of their way to capitalize on “famous” singers/songs. Songs played at political rallies are frequently repeated in rebroadcasts of speeches, etc. Moreover, campaigns frequently adopt songs and repeat them frequently–for example, but for the ‘jerkiness objection,’ one would imagine barracuda would be play a lot.

    Artists/celebrities/media-darlings have been savaged for their political positions and endorsements in the past. It’s no wonder that they’re sensitive.

    And, in a contentious political campaign, even the appearance of endorsement might be a much higher price to pay for an artist than the pennies that they get from their ASCAP license. And here is the issue.

    ASCAP licenses are basically a trap for most artists with no reasonable alternative. When an artist signs on, I doubt few, if any, artists (let alone agents, lawyers, or managers) think about use of their songs at political rallies. After all, most people associate ASCAP licenses with: restaurants playing music, cover bands playing at battle-of-the-bands, etc. In those situations, it’s unlikely anyone would suspect that Heart would think that they are endorsing Chili’s simply because Chili’s happens to be playing their song. That doesn’t seem to be the case at a political rally.

    As such, it seems reasonable that we should be more closely examining blanket performance licenses where political, ideological or other sensitive issues are the purpose of performance and where the inference of endorsement is heightened.

    An alternative way to look at this issue, if copyright is meant to create incentives for artists to create, publish and distribute work, then taking away their right to protect the use of their work (including their celebrity, sound, etc.) in a political campaign that they strongly disagree with might undermine incentives for those artists to either create or license their work.

    That said, I don’t think that under the current standards the gals of Heart–or anyone else–has any real cause of action (assuming of course that McPalin actually has a performance license). However, it does seem ill-advised for a politician to use a song by an artist that doesn’t support him or her since it grabs negative headlines and an opportunity for some random artist to say bad things about the candidate.

  4. Good comments, “mmm.” (Perhaps even mmm mmm good comments?).

    On the copyright issue, my main point was simply that McCain is probably not violating copyrights, and repeated assertions that he did were inaccurate. (I have no reason to doubt the campaign’s assertion that they have the necessary ASCAP and BMI licenses; if they don’t then it’s a different story). You make a different point about whether the blanket licenses are normatively a good idea. (I actually think their benefits so clearly outweigh the disadvantage of loss of control that they are almost surely a net gain for artists, but that’s another issue for another post.) I just wanted to help set the record straight, since every time an overbroad IP claim gets repeated as fact it undermines public understanding and respect for the commons.

    I agree I was a little quick to dismiss the endorsement claims, although I do take them up to some extent in the article to which I linked. Bottom line: I am not comfortable with the constraint on political discourse that would result if candidates had to clear IP rights to every pop culture reference they made.

    Empirically, I also have some doubt that playing songs at a public event necessarily should be interpreted as an endorsement. (Is Neil Diamond a Red Sox fan just because they always play “Sweet Caroline” at Fenway?) And even if a celeb could win a case, that victory would just feed the vicious cycle of trademark law’s dependence on consumer perception, as law professors like Jim Gibson and Mark McKenna (and to a lesser extent yours truly) have documented in their recent scholarship in different ways. Once the public got the idea that song at rally = endorsement, then it would become the law, even if it didn’t start out that way.

    Finally, I think we agree (and so does John Armstrong, above) that there is a much better non-legal mechanism for artists who really object to campaigns using their stuff. Make a fuss and the bad P.R. does the trick. There’s really no need to invoke the law at all.

  5. Does the “do not be a jerk” stipulation ever apply to an artist?

    For example, if the venues (convention centers, stadiums, etc.) or
    the McCain campaign have the BMI/ASCAP license, the aritists
    should be saying (politely) “we appreciate the campaign’s contribution
    to our well being, but we endorse the other guy”. And otherwise
    shut up.