Lisa Borodkin

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?