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

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact

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….”

 

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.