Legal Threats Over Use of Music at Political Events Escalate

Music has been played throughout American history during political events, to rouse emotion and stir patriotism.

However, as intellectual property laws evolve along with the culture of politics, several issues have risen to the forefront along with the ongoing rancor between the permanent residents of Hollywood/Nashville and Washington D.C.  As we have previously discussed, Presidential candidates are frequent targets of musicians' ire for using their songs at political rallies.

Most recently, R.E.M. objected to Fox News' use of "Losing My Religion" during coverage of the 2012 Democratic National Convention.  The pro-Democratic band argues that the use of the song falsely conveyed that it agreed with the conservative networks' critique of the DNC as secularist, stating:

REM in Concert / Wikimedia Commons / Flickr user Stark (Stefano Andreoli)

"R.E.M.'s "Losing My Religion" was used in the Fox News coverage of the Democratic National Convention last night. R.E.M. today, through its music publisher, Warner-Tamerlane Music, demanded that Fox News cease and desist from continuing its unlicensed and unauthorized use of the song." 

Michael Stipe added, "We have little or no respect for their puff adder brand of reportage. Our music does not belong there."

The intellectual property issues break down along relatively clear legal lines.

Copyright:  A songwriter possesses copyright to the lyrics and melody of a song. Additionally, performers of the song possess independent copyrights in their recordings of those songs. Both of these copyrights are licensed to the public through performance rights organizations, such as ASCAP and BMI. Most large public venues, such as sports arenas and convention halls, purchase "blanket" licenses from ASCAP and BMI, that permit them to publicly perform any of the songs contained in their catalogs.  (The songwriters and performers each get a cut of the revenue collected through a separate agreement with the performance rights organizations).

For example, at a baseball game, you may hear the choruses of Queen's "We Will Rock You," Twisted Sisters' "We're Not Gonna Take It" and other rousing anthems repeatedly.  The stadium or sports arena has typically paid a recurring license fee to publicly perform these and other songs within their arenas during events, without many restrictions. Twisted Sister then regularly gets a check from ASCAP/BMI.

However, occasionally, there is a technical copyright violation. For example, if the baseball game is broadcast on national television and the song is heard in the background, the musicians may argue that the license agreement did not cover the "synchronization rights" required for television broadcast (although other license agreements may cover this contingency).

Trademark/Right of Publicity/Implied Endorsement:  In the context of political conventions that occur within the licensed arenas, however, things get trickier.  While a public arena may possess a paid-up license to publicly perform the music under their ASCAP/BMI terms without violating songwriters' or performers' copyrights, some musicians object to their songs' use during political events on separate legal grounds.  Specifically, they argue that the politicians' use of the songs during political events in those arenas nonetheless falsely implies endorsement and sponsorship.

As previously noted, there have been a number of lawsuits filed on these grounds against candidates in both political parties.

ASCAP has issued a helpful summary of the law warning politicians to be aware that their public performance licenses do NOT guard against the Trademark/Right of Publicity/Implied Endorsement theories.

It is this authors' personal view that such alternative theories may have legal merit, depending on the facts.

For example, let's assume that a musician can prove in court that consumers (a/k/a voters) recognize a particular song as a form of source identification.

That is, if we assume that a performer can prove that the public immediately perceives a song as having direct associations with the composer and/or the band that performed the song (especially ones that are politically active and highly visible), then the song may be able to function as a trademark.

Further, if a plaintiff can then prove that a politicians' use of that song is likely to confuse a sufficient percentage of the public into believing that the songwriter/band has endorsed that politician or his/her political party's views, then that plaintiff can demonstrate all that he needs to satisfy a court that there is a likelihood of confusion and irreparable harm to his brand.

On the other hand, if the public is savvy enough to assume that the use of a song during a political event does not necessarily reflect the endorsement or approval of the songs' writers or performers and is not likely to be confused, the Plaintiff would not be able to satisfy his burden of proof, and would lose in court.

Finally, the defendant would presumably assert a "fair use" defense, claiming that the First Amendment's guarantee of free speech immunizes it from the accused intellectual property violations.  

Such a defense would probably fizzle out, if the plaintiff could demonstrate palpable harm from consumer confusion as described above.

Ben and Jerry's Sues Porn Company Over Adult Film Titles

Vermont-based Ben & Jerry's Ice Cream, a subsidiary of Unilever, is known for its creative flavors with names such as “Schweddy Balls” and “Karamel Sutra.”

The ice cream company was not amused, however, when an adult entertainment company used the name “Ben & Cherry’s” to sell X-rated DVDs that intentionally mimicked the ice cream maker’s titles and distinctive trade dress.

Ben & Jerry’s filed a trademark/trade dress infringement and dilution complaint in U.S. District Court for the Southern District of New York against the maker of adult entertainment titles such as “Boston Cream Thighs,” “Peanut Butter D-Cups” and “Chocolate Fudge Babes.”  The District Court has entered a Preliminary Injunction against the Defendant’s further use of the brand names.

Adult entertainment companies have faced similar trademark and trade dress litigation before, and enjoyed only mixed results when asserting the parody/free speech defense in response to the Plaintiff's assertion that the parodies are too close, and are likely to confuse consumers and dilute their famous brands.

For example, in the late 1970's, the Dallas Cowboy's Cheerleaders sued various distributors of "Debbie Does Dallas."

In the Dallas Cowboys v. Pussycat Cinema, an adult theater in New York City that was showing the films was enjoined by the District Court.

The Dallas Cowboys Cheerleaders successfully argued that their famous uniforms were copied by the film's producers and used in advertising without their permission in a manner that was likely to cause confusion and dilution.  The ruling was affirmed by the Second Circuit Court of Appeals.

However, in 2001, George Lucas sued the producers of a Star Wars parody titled Starballz.  The District Court in California held that "the Star Wars films are so famous that it is extremely unlikely that consumers would believe that Starballz is associated with Star Wars or Lucasfilm."

The mixed rulings have only emboldened the adult film industry to press its luck in recent years, making such sophisticated "parodies" even with celebrity lookalikes, as depicted below:

Church Pastor Imprisoned in Trademark Case

Photograph of the Accused Church

We have previously discussed how religious symbols and church names can be trademarked under federal law.

These legal issues are not strictly academic.

Indeed, just ask a Church Pastor who is now in prison as a result of them.

Walter "Chick" McGill was apprehended and turned over to San Bernardino County law enforcement on the campus of church-run Loma Linda University in Loma Linda, California on July 13.

McGill had used the phrase “Creation Seventh-day Adventist” to name his small church congregation in Guys, Tennessee, seen left.

In 2005, the Adventist world church’s Office of General Counsel claims that it first demanded that McGill cease using the name “Seventh-day Adventist” on his church and on several websites.  One year later, the church filed a trademark infringement lawsuit against McGill, suing him for wrongful use of “Seventh-day Adventist.” 

Photograph of Walter McGill

The Seventh-day Adventist Church’s name is a federally registered trademark and can legally apply only to official church congregations, entities, institutions, denominational ministries and certain lay and professional groups as approved by the world church headquarters.

In May of this year, the U.S. District Court made a finding that McGill was in contempt for not complying with court orders to remove the signs, and issuing a warrant for his arrest.

In April, McGill had told a Tennessee news team that "[w]e really would like to comply with the Court Orders.  We respect the Courts, we respect the law.  But in this case the law is violating our consciences and we must put our consciences before the law."  He also said he planned a hunger strike once imprisoned.

Responding to McGill’s recent arrest, Seventh-day Adventist Church officials have emphasized that McGill was imprisoned strictly for ignoring the court’s orders.  “Mr. McGill is free to engage in any ministry he wants, preach whatever he wants, say whatever he wants,” McFarland said. “What he simply cannot do is falsely associate himself with the work of the Seventh-day Adventist Church."

Garrett Caldwell, Adventist world church Public Relations director and church spokesman, added that in cases such as McGill’s, the church is fundamentally protecting its identity.

“People understand what identity theft means on a personal level and how devastating it can be to an individual or a family,” Caldwell said.

“When a congregation that has never had a connection with our denomination, and who does not wish to, because of differing beliefs, wants to simply co-opt our name, we should not overlook this or find this acceptable. To do so would be irresponsible on our part,” he added.

Video of an interview with an Assistant Pastor of the accused Church is below.  He accuses the official Seventh day Adventist Church of lying about the facts, and claims that his church prefers to not be confused with the established Seventh day Adventist church.

In any event, regardless of the merits, as we have previously noted, and as evidenced by the video below, the application of current commercial trademark laws in the context of religious liberty remains an uneasy fit.

BlockShopper: Bona Fide News Reporting or an Invasion of Privacy?

Example of a BlockShopper "Local Real Estate News Story" from St. Louis

Beginning in 2011, law firms Gioconda Law Group PLLC and Balestriere Fariello began an in-depth investigation into BlockShopper LLC.  Collectively, we reviewed hundreds of pages of public documents, collected news articles, read blogs and newsgroups, printed out screenshots and researched applicable federal state and local laws.  The following represents a summary of our findings.  We have not been compensated by anyone for our investigation, nor have we included or considered any privileged or confidential communications in this discussion.  The following is presented solely for the public’s interest in this matter.

BlockShopper LLC owns and operates an interactive Internet website that was co-founded in 2006 by Brian Timpone, a brash one-time Chicago TV reporter turned entrepreneur.  The Chicago Tribune recently reported that the 39-year-old co-founder’s latest gambit Journatic LLC struck a deal in April of this year in which the Tribune Co. agreed to invest an undisclosed amount in his 6-year-old media content provider.  But less than three months later, the Chicago Tribune reports that the partnership has become an embarrassment after ethical breaches, including false bylines, plagiarism and fake quotations, were discovered.

The BlockShopper website has also been plagued by public criticism and even an intellectual property infringement lawsuit brought by a major law firm.  For those unfamiliar with the website, they may be shocked to discover that it offers an aggregate of detailed personal information about individuals, including their names, spouses’ and children’s names, street addresses, details of their residential real estate transactions including property taxes paid, home values, photographs of their home and/or neighborhood, maps and directions to their home, educational background, employer(s), and even photographs.  Some have characterized it as a stalker's dream come true, where personal information is gathered from multiple sources and presented in a comprehensive format.  Identity thieves might also find such helpful information handy.

BlockShopper has also displayed photographs that it has reproduced and copied from personal and business websites, seemingly without the prior authorization, permission or consent of the photographers’ and/or of the individuals depicted in many of the photographs.  BlockShopper has even copied and displayed images of individuals taken from their personal profiles on popular social networking sites such as Facebook^®, MySpace^® and LinkedIn^®, seemingly without the prior approval or permission of those individuals or companies.

The BlockShopper website is profit-driven, although it styles itself as a “local real estate news” reporting tool and does not charge for general access.  Despite its controversial nature (or perhaps in part because of it), the BlockShopper website receives nearly 1 million hits per month.  BlockShopper uses this substantial traffic to woo advertisers and real estate agents, bragging that it is currently operating in many geographic markets across the United States, and that its audience and reach is rapidly growing.

However, not everyone whose information and images are displayed on BlockShopper becomes a fan of the unexpected notoriety.  Indeed, Timpone was personally named in a lawsuit brought by Jones Day, a large national law firm in Cleveland, Ohio for his conduct, but he chose to settle and remove numerous images of that law firm’s attorneys to avoid the expense of further litigation.  To settle that case, BlockShopper’s management team agreed that “it will not use photographs appearing on the Jones Day website without the prior written approval of Jones Day.”

But news articles reported that the Jones Day lawsuit had no meaningful long-term effect on addressing BlockShopper’s overall approach: “The Jones Day lawsuit is not slowing the [BlockShopper] site down from expanding into new markets.  Last weekend, BlockShopper launched in three new cities--Cleveland, Washington, and Phoenix.  That’s on top of the company's recent expansion into Seattle, Philadelphia, New York, Los Angeles, and additional neighborhoods in Illinois.”  Since then, BlockShopper covers even more geographic areas.

Numerous blogs, including StopBlockShopperNow.com and "BOOM" (the "BlockShopper Opt Out Movement"), Facebook pages and public newsgroups have sprung up, reporting that hundreds of individuals have repeatedly complained to BlockShopper and unsuccessfully demanded that their personal information be removed from the website. Complaints have flooded consumer complaint boards, and State Attorney Generals’ offices have gotten involved. BlockShopper has even received complaints about dangerous individuals viewing the aggregated personal information that BlockShopper provides, in order to violate restraining orders.

Specific law enforcement-related complaints seem to have forced BlockShopper to remove at least some listings.  But in many cases, Blockshopper has received numerous, repeated complaints from individuals demanding that their personal information be removed from the website, but adamantly refuses to remove such placement, claiming that its conduct is fully protected by the freedom of speech and of the press.  


The BlockShopper website defends its stance in its“Frequently Asked Questions” section:

Public records are public for a reason. That is, your name isn’t on the title of the property you own—for all to see—to facilitate neighbor nosiness but because it is in the collective public interest. The most important charge of a local government is to guarantee land title; to keep accurate, timely records of who owns what. If we couldn’t learn the “who,” uncertainty would reign and land transactions would slow to a crawl. This would be bad for everyone’s house value. Furthermore, the prices we pay for our homes are public as they serve as the basis for local property taxes. Keeping this information like a secret would result in a lucky few paying too little, while the rest of us pay too much. In the spirit of fairness, we report public records as they are reported to us. We do not eliminate records on BlockShopper.com, as doing so compromises the integrity of our data.

But BlockShopper goes even further than just reporting real estate data, like Zillow.com does.  BlockShopper’s display has included hundreds of photographs taken wholesale from hospitals’ and physicians’ websites, colleges and universities’ sites, small businesses’ sites as well as directly from private individuals’ websites.

160+ Complaints and Negative Reviews of BlockShopper Appear on ConsumerAffairs.com

These people are not what the law would traditionally deem “public figures.”  In fact, BlockShopper has mostly appropriated images of otherwise private individuals such as secretaries, librarians, computer programmers, graphic designers, accountants, teachers, physicians, dentists, engineers, architects and photographers and others.  


Therefore, the core legal question presented by the BlockShopper model is whether the copying, reproduction and display of aggregated information about private individuals alongside their headshots are activities that constitute bona fide “news reporting” about real estate transactions that are protected by the First Amendment, or are really just an invasion of privacy cloaked in the guise of news.

For better or worse, from a precedential standpoint, BlockShopper may have the better of the legal argument when it comes to the legal standard of “newsworthiness.”  In the geographic markets where BlockShopper collects its data, the county clerks’ offices, the privacy statutes and the courts have consistently stated that the test for “news reporting” is liberally applied.  See, e.g., Illinois law (1075/§ 35 (b) (right to control one’s identity does not apply to “non-commercial purposes including any news, public affairs…”); see also Messenger ex rel. Messenger v. Gruner + Jahr Printing and Pub, 94 N.Y.2d 436, 727 N.E.2d 549 (New York Ct. of Appeals, 2000) (“where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability … unless the picture has no real relationship to the article or the article is an advertisement in disguise”; Maheu v. CBS, 201 Cal. App. 3d 662, 675 (1988) (“even a tortious invasion of privacy is exempt from liability if the publication of private facts is truthful and newsworthy.”).


Nonetheless, many individuals and commentators have voiced concerns that a public policy that permits unrestricted and widespread conduct of the sort engaged in by BlockShopper would result in a substantially adverse impact on the actual and/or potential marketplace – but marketplace for what? 

Because the discrete information that BlockShopper aggregates is generally available from county clerk’s offices anyway, and Internet-posted headshots are not usually offered “for sale,” it is not clear what exact “marketplace” is being negatively affected.

In a broader sense, one could argue that BlockShopper’s unauthorized appropriation of images and information from social networking sites may serve to deter private individuals from engaging in socially productive interaction on the Internet.  In fact, Brian Timpone warned the public to this negative impact in a news interview:  “If you don’t want to be on BlockShopper,don’t promote yourself on the Web.”  

But private individuals and copyright holders making images of themselves visible on the World Wide Web could theoretically argue that they have not legally consented to BlockShopper’s appropriation of those images for BlockShopper’s commercial gain.  

Therefore, there is at most an unresolved legal question as to whether BlockShopper’s display of headshots is a legally-permissible “fair use” of those particular images in connection with bona fide news reporting about those individuals.

Finally, many individuals sincerely believe that BlockShopper’s conduct violates their individual right to privacy.  However, they may be surprised to discover that laws regarding the privacy of truthful facts are not as restrictive as one might think.  If BlockShopper has accomplished nothing else, it has contributed to a collective legislative push by some to get real estate data privacy laws toughened up at the county and local levels.

In conclusion, the thorny legal issues surrounding BlockShopper’s website, and other identity aggregators like it, remain mostly unresolved at a national level.  Those who remain disturbed and disgusted by BlockShopper’s approach and question the bona fides of its “news reporting” may best be served writing their local legislators about making the data surrounding their local real estate transactions private.