John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson.
1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances.
2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law).
3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.
4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one.
5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it.
6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.
Presuming the song really is under the compulsory-licensing regimen (entering which is, of course, entirely voluntary on the original copyright-holder's part), which side do you think is violating etiquette? I'd say the holder, for wanting to renege on the deal they made in putting the song with ASCAP/BMI.
The campaign never plays the entire song, often only the chorus. Thus, this factor could cut both ways and is probably a wash.
I sense a candidate for this Sunday’s song lyrics posting!
Because Democrats are not interested in defending their Country?
This is the kind of comment that just pisses me off
It might also be referring to the passages that are more religious than some in the more rigidly separation-of-church-and-state camp (which I suspect is overrepresented among the Democratic core, though certainly not the only view within that core) might prefer:
Not a terribly incisive argument, I think, but my sense is that this was the argument being made.
Tony Tutins: The right of publicity won't generally be an issue -- the uses are generally noncommercial, and the dominant view of the right of publicity is that it's limited to commercial contexts (and it may be unconstitutional to apply it in noncommercial contexts, though that's not as open-and-shut).
As to the freedom of expression argument, that's a very broad view of freedom of expression, covering not just one's ability to say what one wishes, but one's ability to stop others from using those words to say what they wish. There is some authority for that broad a view, which I discuss and respond to in this article (PDF pp. 31-36), but it doesn't seem like a sound view to me. (Among other things, it would suggest that even fair uses, such as parodies, are violations of the original author's "freedom of expression.")
My sense was he was just being a dick. So I ignored him.
Those three people already said they're voting for Obama, so this is a moot point.
Any other nominees?
Syd,
Presuming the song really is under the compulsory-licensing regimen (entering which is, of course, entirely voluntary on the original copyright-holder's part), which side do you think is violating etiquette? I'd say the holder, for wanting to renege on the deal they made in putting the song with ASCAP/BMI.
The etiquette violation would be by people who are using the artist's words to endorse a cause the artist doesn't endorse and may in fact oppose, after the artist has requested them not to. It doesn't mean they can't do it, but it's rude.
Between I Will Always Love You and Born in the USA, there have been the VC has recently seen mentions of two of the most inaptly used songs around.
Any other nominees?
"Every Breath You Take."
That last clause isn't where I thought you were going with that sentence. The use may affect the market for the work, but so does the owner's denial of permission to use it. Campbell mentions that another reason we have fair use is because of market failures where a rights owner refuses to grant a license for reasons that aren't really about money or rights, but rather because "I don't want to license to someone who'll use the song to make fun of me." Maybe there's a stronger case to be made for permitting fair use to prevent market failures due to owners' reluctance to be parodied, than for applying fair use to this kind of situation. Even so, Mellencamp's request - assuming he made it because he doesn't like McCain (if he did, surely he'd be licensing the song or even letting McCain use it for free) - smacks of a Euro-style "moral rights" approach, which is pretty ironic coming from Mr. American Patriotism.
Not to mention that Springsteen's closing statement from that song was "I'm a cool rockin' daddy in the USA", not exactly the kind of lyric one would expect to find in a song written from the perspective of a suffering Vietnam vet.
But even if it didn't have those lyrics, the sentiment of "Don't worry, be happy" from a presidential candidate was amazingly Orwellian.
I’d wager that most people who have listened to and enjoyed the song probably don’t remember any part of the lyrics besides the chorus.
If one misses every single verse and hears only the choruses, sure. Or is George Will, and hears the verses about hard times and closed factories, yet is incapable of grasping the phrase "Born in the USA" as a complaint against current treatment rather than as a declaration of rousing optimism.
Mondale's campaign inaccurately claimed to have been endorsed by Springsteen after he rebuffed Reagan, but as far as I know, they didn't use "Born in the USA." Neither did Reagan -- the problem arose when he was campaigning in NJ and talked about how his message was like Springsteen's "message of hope." Springsteen was pissed off and pointed out that it didn't feel like morning in America in the decayed areas he was singing about.
Eric,
When you say Clinton used the song in his campaign, do you mean it was sometimes part of the mix played during campaign stops (as Billy Joel's "Captain Jack" was for Hillary during her Senate campaign, creating a great distraction for Giuliani &Co.) or that he used it as a campaign theme like "Don't Stop (Thinking About Tomorrow)"? Reagan specifically invoked "Born in the USA" and Springsteen while he campaigned in NJ, which is a much bigger grab for associating oneself with a pop culture icon than simply using some Springsteen music mixed with many other songs.
Certainly, Beethovan was naive fool, right?
I have a vague memory (I was 17 at the time) of some kind of controversy over it and that the Reagan people wound up using Lee Greenwood's God Bless the USA instead.
This is an entirely reasonable statement of the law, but I wouldn't bet on a federal court agreeing. A federal court would find that "ham" is likely to cause confusion with "sandwich."
I'm curious, now I'll have to look up how much longer he lived after composing that (great) symphony. It can't have been too long.
He lived about three years after composing the 9th.
But the political reality is likely the overriding concern here. If the artists involved all feel strongly about a campaign playing their music, the campaigns would be silly to continue to do so. I wouldn't call it ethics, because I don't see ethics having any role here, but rather a question of whether playing that song would gain as many votes as the bad publicity would lose, and I think the bad publicity would win hands down.