Politicizing copyright use

Various outlets are reporting that former Florida Governor Charlie Crist issued a YouTube apology to Talking Heads’ singer David Byrne for using the song “Road to Nowhere” without permission as part of Crist’s 2008 senatorial campaign.  Quoting from the ABA Journal:

In a written statement [dated 11 April 2011], Byrne said he had been surprised to learn that such unauthorized use of a song isn’t all that unusual, and said that he was "feeling very manly" about having protested rather than simply let the issue go.

"Other artists may actually have the anger but not want to take the time and risk the legal bills. I am lucky that I can do that," he stated. "Anyway, my hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future." [emphasis added]

Such explicitly political use of artists’ music certainly has a long history.  Just a few weeks ago, the ABA Journal published an article by L.J. Jackson titled “Musicians Chafe at Politicians’ Misappropriations of Their Work” which demonstrates that

Crist’s legal problems are not unique.

In 1984, Bruce Springsteen made headlines when he objected to President Ronald Reagan’s use of his hit "Born in the U.S.A." as an anthem for his re-election campaign. The rock icon accused Reagan of subverting the true meaning of the song and playing it at rallies without his consent.

Those were the good old days, when an artist’s biggest campaign concern was a candidate using their tunes to pump up the crowd (permitted with a blanket performance license). But times, they are a-changing, and the proliferation of viral videos, YouTube, and Facebook has opened a Pandora’s box of copyright problems for politicians seeking pop-culture cred. [emphasis added]

Jackson doesn’t elaborate on the “blanket performance license” point, but it’s a major one that bears unpacking.  If a politician has the relevant blanket performance licenses from the relevant performance rights organizations (PROs), (s)he is allowed to play recording artists’ music at campaign rallies.  It doesn’t matter if the artist dislikes that particular politician any more than if (s)he dislikes a particular local radio DJ:  the politician (and the DJ) still have permission to play.

I think there are solid policy justifications for allowing such blanket licenses (and thus largely foreclosing artists’ ability to object to particular uses).  Aside from the enormous transaction costs that would be involved with case-by-case negotiation and approval, music clearly lies at the center of mainstream American culture.  Given music’s powerful emotional resonances which often extend well beyond the intent and control of the original artists, allowing artists to withhold public performance of their recorded music by particular non-profits, schools, businesses, or political campaigns seems perverse at best.  In extreme cases, such denials may even be tantamount to private censorship.

Whether you agree with my policy justifications or not, however, the fact remains that blanket performance licenses for live events already exist.  Thus, the question really is this:  why is the Internet any different?  What makes “viral videos, YouTube, and Facebook…a Pandora’s box of copyright problems” where none exist in the physical world of live campaign rallies, sporting events, or trade shows?

I submit that there really is no difference.  The same transaction cost and First Amendment justifications for blanket performance licenses apply with equal weight to Internet media.  To me, any policy difference appears to be simply a historical artifact.

A blogger at Clancco asks:

I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the world is our public domain oyster when it comes to a Republican politician using an artist’s song without the artists permission? We certainly know what Byrne thinks…and it’s not good for Republicans.

I don’t know what “the ‘free culture’ lobbyists” would say, but my response is this:  the political affiliation of the music’s user should not matter one iota.  We can certainly have a policy debate, but that doesn’t mean the debate must (or should) be political.

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