While referring to the political campaigns I am asking her about the legalities surrounding Copyright infringement at issue in this.
CNN reported that Ann and Nancy Wilson (original members of the band Heart) have asked the McCain campaign to stop playing the Heart song “Barracuda” (the campaign plays it because Sarah Palin’s nickname in high school was “barracuda”).
The campaign mentions that they paid for all appropriate licenses which I presume to mean they paid for use of the song at the convention. I am guessing Sony/BMG just processes such requests for their artists without regard to any political or other considerations. Pay $XXX and you get to use the song.
Apparently the campaign has continued to use the song at rallies and Ann and Nancy Wilson have asked them to stop. The campaign is apparently ignoring the request. Sony/BMG is said to have sent a cease and desist order to the campaign.
Does the campaign require permission to play the song at rallies where there is no price for admission? Basically saying, “We’re just jamming some tunes, nothing illegal about that!”
Even if it is an unpaid rally can Heart say this constitutes and endorsement and they do not approve of that endorsement? Even if that is so can Heart forbid use of the song?
As an aside what if Ann and Nancy disagreed about its use? Suppose one loved McCain and one hated him. One wanted the song stopped and the other wants it used. Can they co-“own” the copyright and if there is disagreement as to its use what happens?
Does Heart even have any control over the copyright? If Sony/BMG owns the rights to the song is it up to Sony/BMG to decide on its use and nuts to the original artists?
However, I have a vague (and certainly quite possibly faulty) sense I read something a long time ago that suggested the original author of a work cannot be wholly divested of their copyright and control over it. That at the end of the day they retain some control over the use of their work regardless of contractual arrangements.
Also looks, from the article, like continued use of the song is in doubt. I agree they are in the clear for the convention use likely.
There are actually two issues here. One is the use of the music and words of the song Barracuda. Those rights are actually independent of Nancy and Ann Wilson – they’re controlled by whoever actually happens to own the copyright, whether it’s the Wilson sisters, Sony/BMG music or some other entity, and whether the agreement they signed with ASCAP to license the song includes the right to veto its use when the copywright owner sees fit.
The other issue is using the particular version of Barracuda that was recorded by Heart. In that case, the Wilson sisters could certainly say they don’t want their voices and guitar work used , and the McCain campaign would have to go out and hire some musicians do its own version of the song.
But the campaign would have to be careful not to make their version sound too much like Heart, because of Midler vs. Ford Motor Company.
[QUOTE]
What Bette Midler did complain about was what the Ninth Circuit ultimately described as "pirat[ing] her identity"81 by the advertisement’s use of what was intended to, and did in fact, sound exactly like the popular recording of her voice to attract attention and to generate good feelings about the automobile shown in the television commercial. Bette Midler was also concerned that the advertisers had done this despite her express refusal to agree to sing for the commercial. The Ninth Circuit agreed: “At issue in this case is only the protection of Midler’s voice. The district court described the defendants’ conduct as that ‘of the average thief.’ They decided, 'If we can’t buy it, we’ll take it.”'82 {/QUOTE]
Both of these issues, by the way, have nothing to do with “freedom of speech” but are considered by the courts to be issues control over one’s property - the right to control one’s intellectual property (the song) and use of image or identity (the performance).
Faulty. I can’t think of anything other than moral suasion that Heart can use. Song licensing is a separate body of regulation.
You may be thinking of “moral rights.” Unfortunately, that doesn’t exist as part of U.S. law. It was specifically excluded when the U.S. signed the Berne Convention.
The owner of the copyright – whether it’s the Wilsons or Sony BMG – can certainly stop the song from being used to promote a commercial product. I don’t have any cites at hand, right now, but I don’t think McCain’s use counts – unless he’s using as part of a promotional message. If McCain’s using the song in a television commercial, for example – yes, the copyright owner can stop that, because the copyright owner retains the right to decide whether his or her work will be associated with promoting a commercial product or be used in another audiovisual work (“synchronization rights”).
(On the other hand, maybe a political campaign isn’t considered a commercial venture, so only synch rights thing comes into play.)
If he’s just playing it at campaign events, so far as I can recall there’s nothing to stop him from doing so, so long as he pays the statutory licenses. The performance right license for sound recordings is a statutory license – the copyright owner gets no opportunity to object to a performance so long as the terms of the statute are complied with.
No, once a performance is made into a phonorecord and made available to the public, that phonorecord can be performed by anyone who complies with the terms of the statutory license. No permission is needed.
Now this gets really interesting to me. Playing the song I think could be argued as an endorsement for the candidates. An endorsement Ann and Nancy explicitly reject.
So does a candidate equate to selling a bottle of ketchup here or can they claim it is substantially different since they are not “selling” something for money?
Does the campaign even have to pay to use the song at rallies? How many people do I need over to my house for a party before playing my iPod list for free becomes illegal and I have to pay the artists?