MA GOP’s painfully lame ad may also violate copyright

So the MA GOP has a new web ad that’s supposed to be this big attack on Deval.  It’s painfully lame.  But it also may violate the copyright laws.  Here’s the ad.  Can you identify the singer?

That’s right – that’s James Taylor singing one of his most famous songs.  The same James Taylor, by the way, who is headlining at a big Deval rally with President Obama this weekend.  Now, maybe the MA GOP asked Mr. Taylor for permission to use his song in their ad, and maybe he agreed.  But I have to say, that seems a tad unlikely to me.  Maybe someone will ask him at the rally this weekend.  :-)

Anyway, I’m just really curious to know how this ad doesn’t violate Mr. Taylor’s copyright.  After all, David Byrne sued Charlie Crist for a million bucks over a very similar situation, and the national GOP got burned by Jackson Browne for the same thing in 2008.  I asked MA GOP chair Jennifer Nassour over the Twitter whether she got proper permission.  We’ll see if she responds.  Not holding my breath.

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33 Comments . Leave a comment below.
  1. Maybe Taylor had sold the rights to Columbia Records or something

    and they leased it to the GOP. Like how Michael Jackson supposedly owned the Beatles' songs.

  2. This has happened 100 times or so in the past 10 years

    the GOP consistently does this, and I see very little evidence that the Dems do it.  Now, it's true that very few famous singers are Republican-friendly, so it may be that the Dems do it but don't get called to the table.  Still, I recall reading a long list of instances on the other side of the aisle, including * Aerosmith * Bon Jovi * Boston * Jackson Browne * David Byrne (Talking Heads) * Foo Fighters * Heart * Don Henley * John Mellencamp * Rush

    But, it's unlikely to violate copyright when done at a location.  That's because the place where it's played typically has already purchased an ASCAP license which covers them.  I'd bet the same is true for commercials, though I 'm not sure.

    The other bit is, many perceive the use of the artist as an implicit endorsement of the politician by that artist, and that's what ticks 'em off.  The thing is, the GOP has nothing to lose.  They're unlikely to get sued (Browne being the exception), so they use it for a while and then change things up, which they were going to do anyway.

    • Goes all the way back to Reagan

      He used "Born in the USA" without permission. It's a Republican tradition.

      ...before I became a full-time blogger I worked in the music business. Conservatives, property rights fanatics one and all ... 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.
      • ASCAP and BMI license

        I believe as a musician you sign your rights over. The campaigns pay for the use.

        Ask a local bar owner how pleasant an organization they are to deal with.

        • Erroneous

          The campaigns are supposed to pay for the use. They are also supposed to ask permission. You didn't read the linked article, or anything else on this subject, did you? Besides, you're wrong about ASCAP and BMI owning the rights to the music. They just collect the royalties for the artists, who retain their rights. Some artists refuse to allow their music to be used for advertising or political purposes.

          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.
  3. Fair Use

    This is a parody.  Had Mr. Taylor NOT BEEN scheduled to be the opening act, there would be a good case possibly.  This is satire/parody in the sense they are linking the three main players in today's shutdown of the Back Bay shopping district.

    Oh that ought to go over good with the merchants a complete and utter shut down of the back bay.  Brilliant location for a rally with the president.

    • A for effort

      I take my hat off to Rob for the creativity of his argument.

      Sadly, it is completely absurd. The MA G.O.P. in this case has turned itself into the legal equivalent of the guy selling fake Louis Vuitton bags by the subway. One might as well argue that he is parodying, oh I don't know, our capitalist economy, the legal system in Massachusetts, and 500 years of Anglo-American jurisprudence on private property rights.

      My comment on esteemed BMGer Rob's worthy post at Red Mass Group:

      So much for private property rights The MA G.O.P. steals someone's private property, in this case Taylor's work product, and exploits it for its own purposes and you call it fair use, and slam the person sticking up for the law with sarcasm?

      Why is it so hard to take a reasonable position: the Party should follow the law and pay for songs it uses. If it can't get legal permission, it should use some other song, not just flaunt the law and do whatever it wants.

      This kind of extremist attitude is a big part of the reason why tens of millions of citizens abandoned the G.O.P. in 2008, why the Party lost both the White House and the Congress, and why the Republicans find it such monumentally slow going in Massachusetts.

      "Screw the law, and screw you too" is not a winning campaign slogan.

      But, who knows, maybe the MA G.O.P. isn't a lawless renegade and actually did pay for the rights. Somehow, based on past evidence of MA G.O.P. campaigning tactics, I doubt it.  

      • Have fun

        Another line of defense that may be available for parodists are the free speech principles incorporated in the First Amendment. Historically courts have been sensitive to the interaction between parody as a means of entertainment and as a form of social commentary and criticism and First Amendment values. The public interest in such expression could be construed as outweighing the rights of the copyright owner. Entertainers have successfully invoked free speech principles to present wide-ranging artistic expression. However, when commercial gain appears to be the primary motive such as in movies, books, songs, plays and visual art the parodist's work and its defense under the First Amendment and fair use doctrine has frequently resulted in a number of court decisions that are seemingly irreconcilable.

        The courts have continually struggled with parody cases when ascertaining whether a particular parody falls within the parameters of fair use or is instead copyright infringement. The fair use section of the Copyright Act specifically enumerates criticism as one of the purposes for which the fair use defense was contemplated, but should this imply that a parody should have more extensive latitude than other types of creative works when the fair-use defense is invoked? If parody fails to be protected by the fair use doctrine would this then result in the disappearance of parody as a form of social criticism and comment? What would happen to the parody genre if the parodist is unable to obtain permission to use a parodied work and is then failing to obtain permission is unable to successfully invoke the fair use defense? Should the parody fair-use defense be made more expansive to ensure that copyright infringement does not prohibit a use that in all likelihood would not be licensed from the copyright owner?

        Yep just effort. Not based in facts.  

        • I'm not so sure about that.

          If it was a parody of the song, sure.  But it isn't a parody of the song, you are using the song by the artist.  

          See here:

          But despite DeVore's colorful response, the Central District of California held DeVore liable under the Digital Millennium Copyright Act.  The main issue before the court was to determine if DeVore's use of the campaign videos constituted a parody, which is recognized under the affirmative defense of fair use. The court distinguished parody from satire in that parody is a use "in which the copyrighted work is the target," whereas satire is a use  "in which the copyrighted work is merely a vehicle to poke fun at another target." Because satires have a higher burden under the fair use defense, the distinction is significant.
      • Oh and really watch the Ted video below

        YouTube, which this video is posted on, and most major record labels have an understanding for things like this.

    • Well, good luck with that one, EaBo.

      First, I assume that by your posting this comment, you are conceding that the MA GOP did not, in fact, seek or obtain permission from Mr. Taylor.  Feel free to correct me if I'm wrong about that.

      Second, fair use/parody is probably your best argument.  But IMHO, it's pretty weak in this case.  The argument that a particular ad is more parody-ish because of the precise day on which it is released is ... novel, as far as I know.  More importantly, though, as another commenter has observed, there's no effort to parody the song itself.  None whatsoever.  It just ... well, steals the song.  That's exactly what you can't do.

      I really hope Mr. Taylor challenges the use of his song in this ad.  It would be an interesting case.  And I bet he'd win.

      • The whole work is a parody

        You don't have to change the words to a song to show parody.  This is parodying a certain event.  

        Much ado about nothing.  

        Are one of you three blue watch?

        • What's blue watch?

          As for the whole work being a parody of a "certain event," like I said, that is a novel argument.  Got any authority for your assertion that "you don't have to change the words to a song to show parody"?

          I might not laugh the argument out of court ... but I'm not sure I'd call it a winner either.  I really hope we'll find out.

          • Plus,

            WTF do Martha Coakley and Dianne Wilkerson have to do with today's rally?  If it were obvious from the ad itself that it is specifically "parodying" today's event - which is assuredly is not - your argument might be a bit stronger.  But as it is, the ad is a standalone - you could have run it two weeks ago, or two weeks from now, and it would still make sense.

            • Re: Wilkerson

              Just another corrupt "friend" of Deval Patrick.  And Martha was the Friend Barack couldn't save.

              • Yes I know why they are in there.

                That's exactly my point.  The ad isn't just about the rally.  That's (in part) why is doesn't qualify as "fair use."

    • Surprised you didn't say it was just an excerpt

      I'm surprised you didn't argue that it was Fair Use because only an excerpt, just a couple paragraphs.

      Actually, this is a good example of how merely excerpting a few paragraphs doesn't make it Fair Use, you could still get sued for posting a single sentence of a copyrighted work, if it was making you money or diminishing the value of the copyright.  On the other hand, if it is for education or discussion purposes and doesn't diminish the value or make you money, you can post the whole thing, there is no need to excerpt it.

  4. Also this may be helpful to watch

    From TED lectures on the agreements You Tube has with copywright owners.

  5. Here's another new Charlie Baker ad

    It's called "Charlie Baker Gets Real" and he doesn't pull any punches here:

  6. Missing the point?

    This ad attempts to be an egregious thumb-in-the-eye for Massachusetts resident James Taylor, regardless of its legal standing. It attempts to be yet another gut-punch/nut-kick cheapshot from a mob already known for their gut-punching/nut-kicking viciousness. Worse, it is a thinly-veiled attempt to pander to the racism the GOP assumes in its audience.

    The subliminal message? "Do you want these uppity n*****s in power?"

    Like it or not, James Taylor is a popular and well-loved local celebrity. Using this classic in a vicious attack piece like this alienates as many viewers as it persuades. Those who already hate Deval Patrick and Barack Obama — for whatever reason — will relish the attack. Everyone else will be repulsed. This piece will drive away far more votes than it will gain.

    James Taylor is popular and well-loved by another group that the GOP demonstrates NO knowledge of — classical music aficionados who love and admire the generous support he provides for the Boston Symphony and the thriving arts community of the Berkshires.

    The Massachusetts GOP is so blinded by its own greed, hate and racism that it believes everyone shares its bigotry and its relish for crass lynch-mob cheapshots.

    The ad fails because it insults and repels the very audience it hopes to persuade.

  7. It's just not a good ad

    Legal or illegal, it serves no purpose.  It will never run on television, or in any paid media, because it's politically useless.  "Deval's Got A Friend" is pointless jeering.

    It won't motivate anyone to vote, volunteer, or contricute to Baker's campaign.  It won't discourage anyone from voting for Patrick.

    This ad is to make GOP die-hards feel better because they have no national political leaders who could do anything for Baker.

    "Scott Brown!" you might say, but you would be wrong.  Half the people who volunteered and contributed to Brown are angry that he's to the left of Pat Buchanan.  It's hard to see how they'll get fired up for a business-friendly moderate like Baker.

  8. It should be fair use

    If this isn't fair use, it should be. The courts have tended to grant the broadest possible discretion for political speech. Yes, I know David Byrne and Jackson Browne complained about copyright infringement, but I don't think their complaints resulted in rulings by judges.

    FWIW, "You've Got a Friend" was written by Carole King, so if there's a copyright violation, she can file, too. James Taylor only holds the performance copyright. (Her version is a lot better, too.)

    • Well,

      Jackson Browne settled very favorably with the GOP.

      Jackson Browne has settled a lawsuit and received an apology from Sen. John McCain and the Republican Party over use of his song "Running on Empty" during last year's presidential campaign. The settlement announced Tuesday includes a pledge by the GOP not to use any musicians' work without proper permission in future campaigns, a statement that Browne said he hoped would benefit other artists.... "This settlement is really a great affirmation of what I believed my rights to be, and all writers' rights to be," Browne said in an interview with The Associated Press. "One would hope that a presidential candidate would not only know the law but respect it. It was a matter of bringing that issue to bear."

      Financial details of the settlement were not announced.

      Apparently, though, the MA GOP doesn't consider itself bound by the national GOP's pledge not to use artists' intellectual property without permission.  So much for respecting private property rights.  :/

      I don't know what the status of the Byrne lawsuit is, but will try to find out.

      • Too bad

        I wish McCain had pushed it. He probably had to decide between standing up for free speech and making even more enemies than he already had.

        • Recent CA case ruled against fair use.

          Here's the link.  As far as I can tell, this case, from June of this year, is the first and only case of this general kind to result in a court opinion - the others have all settled.  The facts are similar in some respects (appropriation of a copyrighted song in the service of a political ad), somewhat different in others (DeVore wrote new lyrics; MA GOP did not).

          A federal judge has tentatively ruled that California senatorial candidate Chuck DeVore violated rocker Don Henley's copyrights on two songs when he used them as the basis for campaign commercials posted on YouTube. In addition, the judge says that DeVore's infringement was likely willful.

          This big decision, outlined in a 32-page tentative order, potentially holds major ramifications for politicians throughout the nation....

          n 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.

          Sound familiar?  According to EaBo, the MA GOP is parodying James Taylor's and Barack Obama's affection for Deval.  How'd it work out for DeVore?

          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 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 (left) 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.

          Rut roh.  The final order, which is quite interesting, is available here.  I'm reading and thinking through it now, and will post again on this shortly.

          • Oof

            That decision doesn't sound even remotely compatible with Campbell v. Acuff-Rose Music. Makes you wonder how that case would be decided by the current version of the Supremes, though they've tended to be pretty good on certain types of First Amendment issues.


          • Also,

            after that decision was released, the parties settled rather than go through a trial on damages.

            In a statement Mr. DeVore and Mr. Hart apologized to the musicians, saying: "The court's ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works. Further, we regret all inaccurate, derogatory or disparaging remarks made about Mr. Henley during the course of this dispute."

            Mr. Henley said in a statement that the case "was not a question of political ideology, but the right of artists to control the use of the works they create, and protect their livelihoods." Terms of the settlement were not disclosed.

            Artists appear to be on something of a winning streak in this general area.

            • Lost on you

              is the agreement that YouTube and the copywright holder have to make money by serving ads off the music.  If you'd watch the Ted video that I linked to you'd learn all about it.  If there was a copyright violation YouTube would strip the music.  They do it all the time.  

              I'm actually very happy you seem to have wasted the good part of a day on this instead of vote getting activities two weekends before the election.  It seem Jenn Nassour got in your head.

              • Who cares

                about what YouTube does or doesn't do?  Copyright is up to the holder to enforce.  If James Taylor and Carole King choose to take no action, YouTube isn't going to do it for them.

              • As for my time,

                it didn't take that long.  Some of us are more efficient than others.  ;-)  And the time it took was worth it to demonstrate that the party that talks a good game about property rights also takes other people's property when it suits them.  #hypocrisy

        • Theft.

          How does intellectual property theft equal free speech?

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