Breakin' the Law… or Not!

Wherein Miss Music Nerd gets a small slice of legal education!

First, the background: A couple of people have asked me if I have any plans to cover the songs played at the Republican National Convention, like I did for the Democratic one.

I was pretty clear toward the end of the DNC’s week that I wasn’t willing to do the same thing the following week. It was partly a time management thing — watching 5 hours of C-SPAN followed by a couple hours of typing it up and finding all the linky-links was a big commitment.

But even more than that, I knew that I wouldn’t be able to sit through the RNC without repeatedly being tempted to throw my digital piano at the TV, and that wouldn’t have done anyone any good. πŸ˜›

I admit it: I’m a partisan. Hey, when have I ever claimed to be objective? πŸ˜‰

I looked around online a little bit during convention week to see if anyone else had taken on a task parallel to mine, and I didn’t find much; there was more coverage about bands who performed elsewhere in St. Paul in protest of the RNC. (Here’s all I have to say about that! πŸ˜› ) Now, after the fact, music blogger Carrie Brownstein has a comprehensive roundup of what was heard both in the convention and outside of it.

But there was one news item that caught my attention in regard to the RNC, and spurred me to do a little bit of investigation.

I learned from a few news sources (here, for example), that Ann and Nancy Wilson, the sisters behind the rock band Heart, had objected to the use of their song “Barracuda” as ‘theme music’ for vice presidential candidate Sarah Palin. (Just typing that name gives me heartburn, I must say. See what I’m willing to put myself through for the benefit of my readers’? πŸ˜‰ )

Now, here’s where I have a confession to make. I occasionally wade through the comments sections of online news articles and various news- and politics-related blogs. Oh, I’m sure I’m not the only one — after all, I presume that the comments are being written by human beings (though I would be open to alternative theories), and perhaps you, too, gentle reader, have engaged in this activity as well. So why do I feel all confess-y about it? Because too often, it’s like wading through fetid, stinking GARBAGE, that’s why! it’s like eating a meal of of pork rinds, x-tra-greasy potato chips, Funions (it’s a vegetable!) and Cheetos, with a selection of Ho-hos, Ding Dongs and Sno-balls for dessert. And then wondering why you have a stomachache afterwards.

I hope that by saying this, I don’t discourage anyone who might want to comment here, by the way. On the contrary, I heartily encourage it, because I know that you can do so much better than the folks whose spelling errors go way beyond the threshold of understandable typos, and who seem to be attached to the caps lock key to a rather unhealthy degree. Let’s show ’em how it’s done, ladies and gentlemen! πŸ˜€

My point is, I noticed while reading these comments that there was some confusion out there as to the legalities of the situation.

Some folks saw this as an open-and-shut case of copyright violation — the theft of intellectual property. Others were aware of the licensing fees that organizations pay to use copyrighted music (please notice the proper past participle of the verb ‘to copyright’ — that’s copyright, not copywrite; therefore, copyrighted, not copywritten. Are you feeling my schoolmarm schtick? πŸ˜‰ ), but were unaware that artists do have some legal recourse when they object to how their music is being used — in addition to the power to generate negative publicity with their objections (the latter strategy being arguably more effective).

First, the licensing issue. In the U.S., there are three organizations that collect royalties on behalf of artists when their work is performed publicly (playing a recording counts as a ‘performance’ for this purpose): ASCAP, BMI, and SESAC. (Yours truly is a member of BMI; an artist can belong to one of these — no double-dipping!) They are known as performance rights organizations, and they are among the good guys — membership is free, and they perform an administrative function on behalf of artists that would prevent any new music from being written if the artists had to take the time to do it themselves!

Concert venues and other performance spaces generally pay blanket licensing fees to the PROs, who then divvy up the fees proportionally among the artists. In most cases, you don’t have to get the artist’s permission to use the music, either; you just have to pay for it.

One question I had was whether the RNC was covered under the Xcel Energy Center’s blanket license. According to this Slate Magazine article, the Xcel Center’s license only covers sporting events for the teams who call it home. The article also reports, though, that the RNC did pay for its own license, according to a spokesperson.

So, the RNC was within the bounds of the law in using the song — at least that one time.

The frontwomen of Heart have had their representatives issue a cease-and-desist letter to the McCain-Palin campaign. If the campaign were to continue using the song, the Wilson sisters could sue for damages under a couple of legal concepts:

  • “Derivation of goods”: use of the song would make it appear that Heart is endorsing something they don’t wish to endorse.
  • “Irreparable damage”: the implied endorsement could harm their reputation with their fans.

I obtained this info from a friend in the recording industry, who was also curious about this issue and was able to speak with an attorney about it.

It’s all pretty much moot, though; it’s highly unlikely that the campaign will ignore the cease-and-desist letter, because of the negative publicity that would come from it. This isn’t the first time the campaign has dealt with this issue; I can’t help but wonder why they haven’t learned to anticipate these kinds of things. πŸ˜›

One last thing: prior permission isn’t needed for a public performance, but campaign commercials are a different story. Use of music in TV and movies requires another kind of license, called a synchronization license, and you do have to get the artist’s permission for this one. That’s why Jackson Browne is currently suing the McCain campaign.

This whole thing gives me the same feeling I get when I see an actor attempting to play a conductor onscreen, but failing to perform the motions of a conducting pattern in a way that even remotely relates to the music: “Come on!” I always want to say, “There are plenty of musicians around who you could consult so you’ll have a clue about what you’re doing! I’m available, for example!”

Well, not in this case. πŸ˜›


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