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

from the again? dept

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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Companies: ascap, rude music

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Comments on “Like Clockwork: Copyright Holders Mistakenly Freak Out About Presidential Candidates Using Their Music”

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81 Comments
Anonymous Coward says:

Re: 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.”

Jeremy Lyman (profile) says:

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.)

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

Re: Re: Re:2 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.

Anonymous Coward says:

Re: Re: Re:4 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.

Marcus Carab (profile) says:

Re: Re: Re:5 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.

Marcus Carab (profile) says:

Re: Re: Re:7 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.

Anonymous Coward says:

Re: Re: Re:8 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.

Marcus Carab (profile) says:

Re: Re: Re:9 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.

Anonymous Coward says:

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!

Anonymous Coward says:

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.

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

Re: Re: Re:2 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.

Anonymous Coward says:

Re: Re: Re:2 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.

Anonymous Coward says:

Re: 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.

Robert (profile) says:

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!

Jim_G says:

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?

Alessar (profile) says:

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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