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

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Wally (profile) says:

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? 🙂

Wally (profile) says:

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 ^_^

PT (profile) says:

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.

Anonymous Coward says:

Re: Re: Re:3 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.

John Fenderson (profile) says:

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.

abc gum says:

Re: 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’

JMT says:

Re: 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.

DogBreath says:

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.

sehlat (profile) says:


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.

Wally (profile) says:

Re: 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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