Why is it that politicians keep using music in commercials without getting permission first? No matter what you think of the copyright issue (and we'll get to that), it's amazing to me that any politician doesn't recognize that if he or she uses a song without permission, and the musician doesn't happen to like that politician or that politicians party or policies, that a whole news cycle will be devoted to that musician being able to bash that politician. The latest is Florida Governor, and now Senate candidate, Charlie Crist, who is being sued by former Talking Heads front-man David Byrne
for one million dollars. This is similar to Jackson Browne's lawsuit
against the McCain campaign (though, in that case, the commercial wasn't actually by the campaign, but a local party group).
Byrne keys in on the copyright issue, but seems to jump back and forth between the moral issue and the copyright issue without realizing they're not quite the same thing:
The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."
But, of course, in the US, we don't have moral rights on songs like this. While it's true that the campaign might need to license it for a commercial, Crist could easily have used it at campaign rallies (assuming the venue paid performance rights licenses) and Byrne could do nothing to stop him, no matter how upset he was that some might think he endorsed Crist's positions.
That said, you could potentially make a pretty strong fair use case in such a commercial. It would be for political, not commercial, purposes, and it's only a snippet of the song. Also, it's not like the commercial is going to replace the market for the actual song, so the effect on the market should be minimal (or even potentially positive, if it reminds people of that song and gets them to go out and buy it). That said, I would imagine Byrne's response is that it could potentially harm the market in a few ways, including the negative association of the song with a campaign, and (more convincingly) that it could potentially harm the market for Byrne to license the song to other commercial advertisements. I can see the argument either way, though I (not surprisingly) would lean towards this being fair use.
Even so, though, whether it's fair use or not, you would think that after so many examples of this sort of thing backfiring on politicians, that they would learn to check with musicians to make sure they support the politician before using the song, just to avoid the easy headlines of "big famous musician suing politician x."