Political Fair Use Part V: The Dulcet Tones of Presidential Copyright Infringement

Mitt Romney seems to attract copyright controversies like his bank account attracts interest. During the 2012 presidential campaign, Candidate Romney has already had copyright rows with Tom Brokaw and CNN. Now, he’s got three more.

Last month, President Obama’s campaign used Romney’s cringe-worthy rendition of “America the Beautiful” (a song in the public domain) as the atonal soundtrack to a political attack ad. The Romney campaign retaliated with its own musical ad, which included a clip of Obama’s surprisingly competent performance of Al Green’s “Let’s Stay Together."

The problem was that “Let’s Stay Together,” unlike “America the Beautiful,” is not in the public domain. Shortly after it went live, Romney’s ad was pulled from You Tube at the request of BMG Rights Management, which owns the copyright in the song.

This episode set the blogosphere buzzing. Romney declared that the ad was fair use, and others criticized BMG, which never complained when President Obama first used the song, as partisan and unfair. The general consensus appeared to be that Romney’s use was, if not a “fair use,” at least fair play. Without explanation, the video reappeared on You Tube a few days later.

But the copyright gods are fickle. Shortly after facing down You Tube and BMG, Romney celebrated at a campaign rally in North Carolina using the Silversun Pickups’ song “Panic Room.” The Silversun Pickups are an alternative rock band from Los Angeles. Guess who they are supporting for president.

On August 15, 2012, Silversun Pickups’ attorney sent a cease and desist letter to Romney. The band issued a statement that “we don’t like people going behind our backs, using our music without asking, and we don't like the Romney campaign. We're nice, approachable people. We won't bite. Unless you're Mitt Romney!”

Not to be outdone, last week none other than Dee Snyder joined the fray by sending his own cease and desist letter to vice presidential candidate Paul Ryan over Ryan’s use of Twisted Sister’s angry anthem, “We’re not Gonna Take It.”

The unique circumstances surrounding Romney’s use of the Al Green song certainly raise some interesting fair use issues. After all, almost everything the President does is newsworthy, the “Let’s Stay Together” clip had already taken on a political life of its own, and there wasn’t much danger of it replacing the market for Al Green’s original. However, experience and case law indicate that the unauthorized use of songs for political ads and rallies is normally not protected by the fair use doctrine.

The Romney campaign, for its part, claims that it has a blanket license which allows it use these songs irrespective of fair use, and that may be the case. Paul Ryan’s response to Dee Snyder’s complaint over “We’re Not Gonna Take It” was more pithy. The Associated Press reported that Ryan’s camp simply responded: “We’re Not Gonna Play It, Anymore….”


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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