Tuesday, July 21, 2009
Jackson Browne and the Republican Party have settled a lawsuit over the use of his song "Running on Empty" in an Internet ad which ran during the campaign last year. The ad mocked Barack Obama's energy policy proposals. The settlement included an apology from John McCain, a promise from the RNC not to use any songs by any artists without permission, and an undisclosed financial settlement.
Had the suit proceeded, Browne clearly had a strong case and likely would have prevailed. He was correct to assert his intellectual property rights:
"'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...'The candidate he refers to is Sen. McCain, who actually was unaware of the ad before it was released (it was a negative ad run by the Ohio Republican Party and did not have the usual tag line about the ad being approved by the candidate).
"...Browne said he hoped the lawsuit and its successful resolution would have an impact on future political campaigns by putting an end to cavalier attitudes about artists' copyrights.
"'I would hope that they would think twice about taking someone's song without permission and understand that the law was put to the test and our rights prevailed,' he said."
It is good to have Jackson Browne on the side of intellectual property rights (copyrights, in this case, I believe), which are an important subset of individual property rights. I hope that he feels just as strongly about other forms of intellectual property rights -- the patents that pharmaceutical companies receive, the trademarks of major brands, the property rights of software companies and medical device companies, etc. Or is it just big-ticket musicians that he stands with?
From 30 years ago (and noting that David Lindley plays a mean slide guitar):
UPDATE: Thanks to commenter bassdude for directing us to the ASCAP website for information on the song in question. The result that I get from ASCAP is here, and it indicates that Jackson Browne is indeed the sole writer of "Running on Empty," and that his publishing entity, Swallow Turn Music, has retained Wixen Music Publishing as "copyright administrators." Wixen's website is full of information relating to Fair Use, copyrights, parody, etc., and describes the firm as "professional squeaky wheels," so presumably the information there is somewhat tilted toward the holder of the copyright (as zealous advocates for their clients, I would expect nothing less).
Thanks also to the IP lawyer commenting below. I would refer everybody to the language used in the AP article at the link above, by Browne and particularly his lawyer, and to the nature of the settlement itself -- an apology and a promise by the RNC never to use music by any artist in the future without permission, as well as an undisclosed financial settlement (which could be minimal, or just covering legal fees). Without litigating the case here, since we don't have access to the briefs, why would the RNC settle on those terms if Browne did not have a fairly strong case? I am not a lawyer, but my understanding of Fair Use is that the use of music at a political rally would not fall under the most common interpretations of that provision of copyright law. Also, Wixen was retained by Browne, and Wixen goes hard after non-Fair Use performances, so it isn't clear to me whether the scenario that the IP lawyer cites below actually applies here (that is, Browne might be among that select group of big-ticket stars that actually retain more control of their works).
Reading between the lines, I think Browne understands well that most recording stars are Democrats, and he may want to limit the universe of music that will be available to the RNC to rally the troops. For someone with Browne's long history of political activism (stretching back to Vietnam, No Nukes, U.S. out of El Salvador and Central America generally, etc.), there probably is no amount of money that he would accept from the RNC to permit the use one of his songs. Knowing Browne's quasi-socialist views, I was gently trying to poke at his just assertion of IP rights, guessing that his general views on non-"artistic" personal property rights might not be as robust. But, at the very least, we have him making this righty-sounding economic statement:
"'If you don't uphold the law that allows people to make a living from this, the result is you won't have people able to do this work,' Browne said."So, hopefully, no such hypocrisy exists in Jackson Browne's views about all personal property rights. Finally, the AP article did mention that Sam Moore asked the Obama campaign to stop using "Soul Man."
We can't know if Browne would have objected as strenuously if it had been an Obama commercial. But I would be very surprised if he makes the connection between his intellectual property rights and Kelo, pharmaceutical companies, or progressive tax rates. They don't think like that
A number of years ago the RNC played "God Bless America" every time they wanted the convention delegates to stop their demonstrations and sit down. After the Convention ended, the Boy Scouts of America sent an invoice - Irving Berlin had donated the rights to them and they wanted their royalties for public performance on a national TV show.
As a friend asks about illegal software - do you steal your hardware too?
Jackson Browne and the Republican Party have settled a lawsuit over the use of his song "Running on Empty" in....
"Running on Empty" pretty much describes Obie, his minions, his cult, and his policies.
IP lawyer here. I haven't looked at the specific facts of this case, but have a few brief comments:
First, Jackson Browne sucks. I loved Browne back in the '70s, but then I grew up. Sophomoric, angst-ridden lyrics, screeching guitar riffs, booming drum solos--his music is almost self-parody. It's painful to listen to Jackson Browne.
Second, it would be uncharacteristic of the business for Browne to still hold the performance/distribution rights for his songs. Typically artists have to assign/license these rights to the studio in exchange for financing the album. The studio in turn may assign/license the rights to ASCAP, RIAA, or another entity whose interest is to maximize the financial return on the asset. Once these rights are assigned to such an entity, the artist has no legal standing to limit use of the recording. I suspect this case settled for a reason, which is that Browne's legal position was on shaky ground. Springsteen tried the same BS. These old rockers are pathetic.
Third, depending upon the specific facts the RNC may have had a decent fair use argument. Again, this case settled for a reason.
Additional Information for:
RUNNING ON EMPTY
Writer(s): H. GRALKE, M. FOX, H. SCHREIBER, P. JUREIT
HFA Song Code: R10412
The song is licensed for use through Harry Fox Agency (http://www.harryfox.com/songfile) for reproduction use, so likely is licensed through another agency for live performance use through either ASCAP or BMI (I've not searched, but in order to get payment for having their music played on radio, bars, etc, you license through ASCAP or BMI who tracks radio plays and payments, etc). Legally all RNC needed to do is pay the licensing fee and Mr. Browne can go take a long hike.
On top of it, although many sources list Brown as credit, evidently Browne didn't even write the song (unless there are multiple songs done by Browne called 'Running on empty'.
The most recent comment seems to be in direct contradiction of the original post,
"Had the suit proceeded, Browne clearly had a strong case and likely would have prevailed. He was correct to assert his intellectual property rights."
I wonder who's right.
IIRC, using a song as a "theme" is covered a bit differently than just playing a tune at an event. i.e. Rush Limbaugh's use of My City Was Gone , for which he had to negotiate a deal with Chrissie Hynde. For such things do laywers get paid.
If memory serves me correctly, didn't Browne sue the Sandinistas for wrongful appropriation of "Stay"? An iron man of principle.
John Hall (of Orleans fame) was one of the few rockers in "No Nukes" who evidenced signs of sobriety and intelligence, etc. (Graham Nash was the other.) Wonder how John's doing in the House these days?
I've always enjoyed Jackson's music; saw him live within the past decade. He went through some serious angst following his breakup with Daryl Hannah. Completely excusable.
IP lawyer here again, responding to the update to the post. The person identified as bassdude is correct. If the song is ASCAP licensed, then all the RNC needs to do is to pay the ASCAP fee. Browne has no standing to stop use of the song by an entity for any reason, including his political beliefs.
The RNC likely settled because it was a PR loser and a waste of time and resources for them. Browne settled for the promise not to use music without permission from the artist. This has long been on the legislative "wish list" of producers and composers, and is part of the Bill of Rights advocated by ASCAP. It is NOT part of existing copyright law.
Separately, the right to withhold permission to use a work will raise interesting First Amendment issues, inasmuch as it will be enforced by the coercive power of government. If a music producer can stop a particular political group from using his/her work, can a painter prevent his/her painting from being presented in the gallery of an oil tycoon? Can a film producer stop a particular theater chain from showing his/her film because the owner is a donor to a political party or cause?
As a practical matter this scheme quickly becomes unworkable. The economic value of a copyrighted work that is subject to approval by the artist on a case-by-case basis would be seriously diminished.
Hope that's helpful. (Jackson Brown still sucks. Seriously, the '70s are over, and thank God. Time to bury all that crappy music.)