Republican Politicians Preach Property Rights Until It Comes To The Issue Of Their Campaigns Stealing Music

Kentucky voters-- of all stripes-- are withdrawing their support of Kentucky teabagger Rand Paul. His polling numbers have collapsed, even in laughably partisan surveys taken by Republican Party pollster Rasmussen. He got off to a bad start after absolutely thrashing Mitch McConnell's dull, button-down protégé-- who had the backing of the entire Republican Party establishment-- in the primary. Instead of building on that momentum, Rand came charging out of his cage-- in full clown regalia-- screeching about... well, whatever popped into his crazy little mind. He went so far into the stratosphere to claim that he's a champion of the unfettered primacy of private property that he came this close to denouncing the Union for taking away the property rights of the wonderful Confederates in the Civil War. (That was in the context of defending a comment he made about the inappropriateness of sections of the landmark Civil Rights Act of 1964-- the one that tried finishing what the Civil War started.)

Many Republicans, particularly in the South, are in 100% agreement with Rand on all this-- but most have the street smarts to not bring it up outside of a Klan rally, let alone on TV... let alone on Rachel Maddow's show. But Rand seemed determined to prove to the world that Cheney, so seldom right about anything, was right to characterize him a dangerous moron. Even beyond the touchy issues of race and slavery, even Jeff Sessions-- the actual KKK Senator-- understands, at least these days, that you don't go on TV and say that kind of stuff. Southern oligarchs may feel the Union cheated them out of their "property" but it takes an imbecile like Rand Paul to say it make it part of the public debate again. But he insists he isn't a white supremacist or a racist of any kind-- just a property rights supremacist.

Funny about Republicans and property rights though. They'll shoot you if you walk on their lawn-- with a self righteous smile on their mug-- but when it comes to intellectual property, they see eye to eye with their authoritarian cousins, the Communist Chinese.

You probably remember me telling you that before I became a full-time blogger I worked in the music business. Conservatives, property rights fanatics one and all-- they especially hate the government seizing their hard earned money (i.e.- making them pay taxes) and using it to educate minorities and poor people-- were always causing problems with their unauthorized use of our artists' music. I can't say it wasn't a pleasure calling our in-house attorneys and telling them to go especially hard on GOP hypocrites who thought nothing about putting a popular song into their commercials without so much as asking permission, let alone paying the prevailing rates-- which, by the way, are set by Congress. This hasn't stopped Republicans from using songs-- and creative people are usually not Republicans-- by Democratic artists like Bruce Springsteen, Heart, Jackson Browne, the Foo Fighters, John Mellancamp, Van Halen, Boston... and always without permission, even though it would be virtually impossible at this point for a politician to be unaware that this isn't legal to do.

And I'm sure you can imagine how much fun I had when I found out anti-music scold Joe Lieberman was using the Orleans smash Still the One. John Amato actually called the songwriter, John Hall, ironically now a congressman himself, to beg him to sue Lieberman. Hall demurred, simply asking Lieberman to stop using his music. But many other musicians-- usually ones who aren't running for office-- have been suing... and winning.

Far right fanatic Chuck DeVore's campaign against Barbara Boxer got off to a dismal start when it turned into a war against Eagles drummer Don Henley. It's been all downhill for DeVore since then and this week a judge ruled, at least tentatively, that DeVore not only illegally violated Henley's property rights by using his music in his embarrassingly childish ads but that he did so willfully. "Willfully" is important because it could mean that DeVore is going to wind up with more than a slap on the wrist.

This big decision, outlined in a 32-page tentative order, potentially holds major ramifications for politicians throughout the nation. (Judges are free to change their minds after issuing a tentative ruling, but it's rare; the two sides were in court today arguing over the tentative ruling). Over the past few months, several musicians have pressed copyright claims against politicians including John McCain, Charlie Crist, and Joe Walsh. 

The case against Chuck DeVore was the first to get to judgment. 

In response to Henley's lawsuit, DeVore claimed that the First Amendment protected political speech and he had a fair use right to Henley's work. In court papers, DeVore claimed that in using two of Henley's songs-- and rewriting the lyrics-- he was parodying Hollywood's affection for liberals. Using a copyrighted song as part of a parody (poking fun at the original work) is allowed more often than using a copyright in a satire (when you're poking fun at something else).  

U.S. District Court Judge James Selna framed the major legal conundrum this way:

"This case raises the somewhat novel issue of whether... criticism of the author of an original work falls on either the parody or satire side of the line. In other words, is work which appropriates from the original to criticize the original's author-- but does not directly criticize the content of original-- validly classified as 'parody'?"

In looking for an answer, Judge Selna cites a number of recent disputes, including a lawsuit brought by JD Salinger to stop a sequel to The Catcher in the Rye and another case where an individual was sued for writing a song, "I Need a Jew," with a tune and lyrics similar to the Disney classic "When You Wish Upon a Star." In those cases, judges split, one finding the Rye sequel wasn't a parody and the other ruling that the song making fun of Walt Disney's purported anti-Semitism was.

Judge Selna notes, "the act of ridiculing and lampooning public figures is a rich part of our First Amendment tradition" and "in many cases, the most effective tool of ridiculing a public figure...is through that person's own creations."

On the other hand, Selna takes great pains to analyze the character and lyrics of each of DeVore's songs to determine whether he took too much liberty in what he borrowed from Henley's underlying composition.

He finds that the song "All She Wants to Do is Tax" (based on Henley's "All She Wants to Do is Dance") is pure satire because it fails to take aim at the original or its author, and thus it lacks justification to borrow. He finds that "After the Hope of November is Gone (based on Henley's "The Boys of Summer") lampoons Henley as an Obama supporter and would thus be justified in appropriating some of Henley's song. However, the judge finds the song goes far beyond what's necessary to hold the singer up to ridicule.

Neither song is fair use, the judge rules.

McCain, whose (wife's) immense wealth has allowed him to drag Jackson Browne's suit against him out for almost a full year, is still in litigation. McCain stole Browne's biggest hit, "Running On Empty," not to describe his own pathetic, losing campaign-- or that of his delusional running-mate, but to attempt to besmirch President Obama. And just Monday David Bryne took Florida Governor Charlie Crist to court for stealing one of his signature Talking Heads songs, Road to Nowhere. Byrne, who does not license his songs commercially, wants a million dollars in damages from Crist. Byrne announced the lawsuit, and the reasons he was pursuing it, on his own blog:

Besides being theft, use of the song and my voice in a campaign ad implies that I, as writer and singer of the song, might have granted Crist permission to use it, and that I therefore endorse him and/or the Republican Party, of which he was a member until very, very recently. The general public might also think I simply license the use of my songs to anyone who will pay the going rate, but that’s not true either, as I have never licensed a song for use in an ad. I do license songs to commercial films and TV shows (if they pay the going rate), and to dance companies and student filmmakers mostly for free. But not to ads.

I’m a bit of a throwback that way, as I still believe songs occasionally mean something to people-- they obviously mean something personal to the writer, and often to the listener as well. A personal and social meaning is diluted when that same song is used to sell a product (or a politician). If Crist and his campaign folks had asked to use the song, I would have said no-- even if they had offered a lot of money, such as I have been offered in the past for ad use (though I’ve always turned these offers down).

I believe my audience is aware of this no-ad use policy of mine, and part of the respect I am accorded as an artist is due to my maintaining this policy. Needless to say, if they thought I’d licensed a song to a political campaign they might not respect me as much in the morning.

It might be pointed out that Republican campaign organizations have done this kind of thing before. John McCain’s campaign used the Jackson Browne song “Running on Empty” and Reagan’s folks used Springsteen’s “Born in the U.S.A.” Both were used illegally without permission, and in the case of the Jackson Browne song a lawsuit was brought. After the Republicans lost several motions attempting to dismiss Browne’s complaint, they settled with him. Part of the settlement said that the Republican National Committee promised to respect artists’ rights and to obtain licenses for the use of copyrighted works in the future. So, it’s not like they weren’t warned, or hadn’t been burned before.

Ironically, the Rand Paul situation is over his use of music by a band with whom he does see eye-to-eye with politically, Rush, a group confessing to get it's songwriting inspiration from wingnut propagandist Ayn Rand-- for whom Rand Paul was named. I guess that's why he thought he could just use "Tom Sawyer" and "The Spirit of Radio" with impunity-- and without paying.

In Web ads and at campaign appearances, Republican U.S. Senate candidate Rand Paul sometimes has called on the music of the band Rush to give his message a little pop.

It turns out the campaign wasn't using the music with the band's permission, according to Rush's attorney, Robert Farmer.

Farmer, general counsel for the Anthem Entertainment Group Inc. in Toronto, which is Rush's record label, has sent a letter to Paul campaign officials informing them that they have violated copyright laws-- and urging them to stop."This is not a political issue-- this is a copyright issue," Farmer said in an interview. "We would do this no matter who it is."

Jesse Benton, Paul's campaign manager, said in an e-mail: "The background music Dr. Paul has played at events is a non-issue. The issues that matter in this campaign are cutting out-of-control deficits, repealing Obama Care and opposing cap and trade."

He did not say if the campaign would stop using the band's music.

Farmer said his next legal step depends on the formal response he gets from the Paul campaign. Defendants in civil suits over copyright infringement can be subject to damages and fines.