Showing posts with label politicians. Show all posts
Showing posts with label politicians. Show all posts

Saturday, September 8, 2012

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.

Tuesday, August 7, 2012

US Marine Corps Logo Stripped After Trademark Issue Surfaces

John Brunner, who proudly served in the U.S. Marine Corps as an Infantry Officer and rose to the rank of Captain, is running for a U.S. Senate seat in Missouri as a Republican.

Brunner had apparently placed the U.S. Marine Corps logo on the back of his campaign bus. 

However, the Marine Corp's logo is federally registered as a trademark, and the Corps clearly frowns on the use of the proud logo for unauthorized commercial or political purposes.

Here is an excerpt from the U.S. Marine Corp's Frequently Asked Questions about its licensing program:

I'm running for a political office and am a former Marine. 
Can I use Marine Corps trademarks on my campaign materials?  
No, you may not use the official Marine Corps Seal, Eagle, Globe and Anchor (EGA), or any other USMC insignia or trademark in this manner, since it might create the impression that your candidacy is endorsed by or affiliated with the USMC in some way, or that the USMC has chosen your candidacy over other candidates. 
You are more than welcome, to simply and accurately state that you are a Marine Corps veteran, that's fine, that's a fact. 
But using the EGA which is a trademark of the USMC, and protected by Federal law (please see 10 USC 7881) is something you may not do. 
This is consistent with the Marine Corps Uniform Regulations which clearly states that the wearing of the uniform in a political context is strictly prohibited. Please see Section 11002(1)(a)(2) and (3) of the Marine Corps Uniform Regulations.
The trademark issue had surfaced when local reporters questioned the propriety of Brunner using the logo on his campaign bus under federal laws.
In a statement to local news on Saturday, Brunner's Press Secretary John Sutter said "The campaign believes that the RV does not constitute campaign materials, but we will remove the sticker just to be cautious."

Wednesday, July 18, 2012

Why Don't Presidential Candidates Seem to Respect Intellectual Property?

Gage Skidmore / Wikimedia Commons
It seems like many candidates for President of the United States just don't seem to understand how to avoid being accused of copyright infringement.  Here are a few cases in point:

Presumptive Republican candidate Mitt Romney recently launched a YouTube campaign advertisement depicting President Obama, and using the song "Happy Together," without authorization from the songwriter.  The ad is pulled by YouTube as an alleged copyright infringement.  

Earlier in the race, Newt Gingrich used Survivor's "Eye of the Tiger" without permission and was sued for copyright infringement.  In 2010, Rand Paul received a cease and desist letter from Canadian rock band Rush's lawyers for similar behavior with respect to their songs.  And Senator John McCain was sued by Jackson Browne for using the song "Running on Empty" in his 2008 campaign.

Daniel Schwen / GNU Free Documentation License 
But artists aren't only targeting Republicans.  In 2008, President Obama's campaign received a cease and desist letter from duo Sam and Dave about the song "Hold On, I'm Coming."

NPR correctly points out that a blanket license from ASCAP/BMI/SESAC for the particular venue that the candidate is using may already license the song for the copyright royalties covering public performance.

However, not to be outsmarted, the artists have alleged a less clearly-defined trademark infringement theory.  They cleverly contend that the unauthorized use of their music falsely suggests endorsement, sponsorship or approval by the musician.

In any event, what the trend signifies is not so much that the Presidential candidates are a bunch of copyright thieves as it demonstrates that the legal lines between commerce, the First Amendment, politics and copyright/brand protection can be quite murky, as we have previously noted.

Sunday, July 8, 2012

Can Politicians Become Trademarks? Are Voters Just "Consumers"?

The Obama Rising Sun Trademark
Even though politicians' names, campaign emblems and slogans are used in all manner of political speech, they may still be fully protectable as commercial trademarks.  Voters and political participants may be treated as "consumers" under applicable trademark laws. Case in point:  Just last month, President Barack Obama's campaign committee filed a trademark infringement lawsuit against a Washington D.C.-based company for using the campaign's "Rising Sun" logo without permission. The Obama campaign sued Washington Promotions & Printing Inc. in federal court, claiming the company's website has been selling unauthorized merchandise featuring the campaign's "Rising Sun" logo. According to the Complaint, the Obama campaign had sent several cease and desist letters last year, but the Defendants continued to infringe. "[The] Defendants are using the Rising Sun Trademarks on merchandise in a deliberate and willful attempt to draw on the goodwill and commercial magnetism of the Rising Sun Trademarks and the Obama Campaigns," the Complaint alleges.
The Obama campaign federally trademarked the “Rising Sun” logo in 2008, according to the Complaint.  It filed for a trademark registration on a similar logo for Obama’s re-election campaign in April 2011. According to the complaint, the Obama campaign is concerned that DemStore’s use of the logo “is likely to create confusion” among "consumers." “[E]ach time a supporter makes a relatively small purchase on the website, [Obama for America] obtains that individual’s contact information, which OFA can then use to reach out to that individual repeatedly to seek further donations and further opportunities to promote the Campaign,” the Complaint alleges. The campaign “relies largely on promoting a certain message,” according to the complaint, including exercising “strict control over the consumers’ experience on its website and at other marketplaces” selling authorized merchandise. 
And (former) Republican politicians have taken the trademarking theory to the next level.  Last year, Sarah Palin sought to federally trademark her name, devoid of logos.  After her application was initially rejected for being unsigned, the mark proceeded to federal registration on the Principal Register.