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Fair Use, Music and Political Campaigns October 16, 2008

Posted by lborodkin in : Uncategorized , trackback

Photo by s fitzstephens under Creative Commons license.

I just read the letter from Ann and Nancy Wilson of Heart to the McCain campaign objecting to their use of “Barracuda” as entrance music for Sarah Palin.  A similar issue came up today with Bon Jovi and last week with The Foo Fighters’ “Hero”. 

Illegal uses or not, the reactions of the artists show the significance of the non-economic rights granted by copyright.  These include the right to approve derivative works.  In August, Jackson Brown sued the McCain campaign for using “Running on Empty” in a campaign commercial without permission.

Attribution matters.

How much?  Traditionally, recording artists retain the right to approve licenses of their music for political advertisements. It’s a custom that the music business has respected, even cultivated, in the grand American tradition of protest music. Free speech includes the freedom not to be associated with a cause one disagrees with.

Many non-commercial Youtube videos incorporating TV clips or music are defended as fair use. McCain invoked fair use when Youtube took down a campaign video that used unauthorized CBS clips. Youtube declined, suggesting that the McCain campaign send a counter-notification under the DMCA.

Here’s some thoughtful debate from Lessig Blog on the tradeoffs between allowing borrowed clips and music under the fair use doctrine versus requiring permission from copyright holders.

It’s not exactly censorship. If you use someone else’s material, the owner can ask to have it removed. It’s an assumed risk nowadays. Isn’t it desirable anyway to avoid the PR problem of band after band declaring how much they dislike your candidacy?

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  • http://netzoo.net Andy Sternberg

    The McCain campaign could turn this PR mess around by cutting out the selfish whining and publicly expressing an opinion on < a href="http://www.publicknowledge.org/node/1800">proposed copyright reform measures.

    While I agree that all of the uses mentioned above are illegal and should not pass for “fair use” under any circumstances, the reality is that *anyone* can demand a DMCA takedown and the content in question would be removed without question under YouTube's current terms. We've seen corporations like Viacom unilaterally attempt this and follow up with billion dollar lawsuits. Another rare example of YouTube refusing a DMCA takedown request (thanks to action from EFF and others) involved the International Olympic Committee and a Tibetan protest video of the Beijing Olympics.

    You'd think that — at least behind the scenes — Google must be lobbying for copyright reform to help clarify such issues.

  • iona276

    thanks!

  • http://www.shop4silver.co.uk/mackintosh-art-nouveau-686/ Mackintosh jewellery

    “Another rare example of YouTube refusing a DMCA takedown request (thanks to action from EFF and others) involved the International Olympic Committee and a Tibetan protest video of the Beijing Olympics” thats true.. rightly said

  • http://lisaborodkin.com/the-hidden-value-of-creative-commons/ Lisa Borodkin » The Hidden Value of Creative Commons

    [...] another side to using Creative Commons work that reveals the flip side of my previous post on why attribution matters in copyright law. Attribution is a way of finding and linking to people that you want to work with [...]

  • Anonymous

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  • http://www.MarshVorspan.com Remodeling Austin

    the moral lesson was, always take the consent first, mcain has lots of money so why doesn't he use it to pay a small price..

  • morgage31

    Nice Post I already digged this

  • OxjdlkTaylor

    I bookmarked this already dude great work

    Regards

  • magistrate

    Nice post.Good knowledge about the music and political campaign.

  • http://www.hindisonglyrics.info Hindi Song Lyrics

    The artists should know their rights and responsibilities as an artist and as a human. DMCA really have a good job in taking down request for the unauthorized used of CBS clips.

  • http://www.hindisonglyrics.info Hindi Song Lyrics

    The artists should know their rights and responsibilities as an artist and as a human. DMCA really have a good job in taking down request for the unauthorized used of CBS clips.

  • http://www.goldstonesilver.com/ Silver Cabochon Jewellery

    being na amteur musician myself, i beleive that artists should be consulted before using materials for pilitical purposes…

  • http://www.sandrjewellery.co.uk Shlomoephraim

    Well think of it this way, would you want your music to be used this way? I would be quite annoyed

  • Mbtaggart

    I understand both sides of the argument. But this sort of the thing has happened so often that I don’t know why campaigns don’t clear the rights first. The most recent case is with Tom Petty over Michelle Bachmann’s use of “American Girl.” I knew the song, but until Petty threatened to due, I had forgotten he was the artist. And I would never have assumed that use of the song was an endorsement by the aptly-named Petty. I don’t even LIKE Bachmann, but now I like Petty even less.

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