Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

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25 thoughts on “Copyright, fair use and the limits of political speech

  1. BP Myers

    Interesting how Republicans are very much concerned about property rights, except where they’re not.

    Your argument about the extended lengths of copyrights are a canard and a distraction. If you’re not happy with the law, work to change it. But it is current law.

    You say the ad only uses 57 seconds of the song. I say the ad uses almost an entire verse.

    You say Apple uses 30 second snippets. This ad uses 57 seconds, almost 100% more than Apple does, and for an entirely different purpose.

    Finally, you say any argument that the use of the song would “impact the market” for it is laughable. But I can see a scenario where someone who was a fan might believe Taylor and/or King are endorsing Republicans and stop buying tickets or CDs.

    It is one of the most egregious copyright violations I’ve ever seen.

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  3. Since both artists are still around, maybe they should have a say in whether their work is used for political purposes. Perhaps at this late stage in the campaign there could be an ad saying that the royalty checks from Taylor and King go to the Patrick campaign. Doers that put the artist’s in the position of being strong-armed into a fight in which they have no dog? Chrissie Hynde has Rush Limbaugh’s royalty checks for using “My City Was Gone” sent directly to PETA, but that was after Limbaugh called her a “wacko environmentalist” and essentially threw down on Hynde, forcing her response.

    Music – melody and words – has a heightened power compared to words alone on electronic media. If nothing else, music can be played at the same time as images are broadcast which can make people in the images look absurd, appear to unwillingly or foolishly “dance to the fiddler’s tune.” (For instance, in film, sometimes music to key emotions can be intrusive, but if used well, the moviegoer may not realize that he or she is being manipulated to feel certain emotions toward the situation or character on-screen.

    Words alone have a similar but lesser power, depending if they’re read dramatically, with flat inflection, or contemptuously. How would you feel if rather than “You’ve Got A Friend” a narrator read an old “Media Nation” post juxtaposed with images of a politician that make her or him look foolish? Would it depend on which candidate you support? Would you feel entitled to some sort of remedy? Would you feel an agent representing you was entitled to take action against the ad?

  4. Jerry Ackerman

    I would guess that as long as the GOP is paying appropriate ASCAP or BMI fees for broadcast use, there’s no issue.

    1. Dan Kennedy

      @Jerry: David Kravitz began with the presumption that the Republicans did not pay the licensing fee, and I played along. But you could be right.

  5. Jerry Ackerman

    Dan, let me rephrase that:

    Did the GOP pay ASCAP or BMI fees for broadcast use? Is that enough to satisfy use of the song/performers for this use?

  6. LFNeilson

    The song is being presented to convey something other than its original meaning. If pols want to use music in a commercial, they should follow the law. I would not be surprised to see legal action, especially if JT is still on the Vineyard. It should be an interesting case.

    That said, the royalties due and any legal cost would probably be considered a reasonable price of winning in the present political environment. By the time any case makes its way through the courts, the election will be history.

    Ironic that music is so carefully guarded under ASCAP, while print is still a field where the copyright holder may or may not find out that his work has been stolen, and is then on his own to hire a lawyer to pursue a remedy.

    1. Dan Kennedy

      @LFNeilson: Which suggests that the GOP’s use of “You’ve Got a Friend” is “transformative,” which means that it is more likely to be considered fair use, not less. Granted, it doesn’t fit the classic sense of transformative — new lyrics and the like.

  7. Rich Carreiro

    Come on, Dan. The misrepresentations you manufacture so that you can smear people and companies you don’t like are really beneath you.

    Take a look at http://en.wikipedia.org/wiki/United_States_copyright_law#History for starters.

    Copyright duration was 28 (14 years with 14 year renewal) years in 1790. It was raised to around 42 years in 1831 (guess those evil Disney profiteers must’ve been working the time machine pretty hard). Then you had treaty ratifications in 1954 and 1971. Next big increase was in the 1976 Act which was to harmonize with the Berne Convention (you know — one of those international treaty things that liberals are all gung-ho about the US signing onto rather than arrogantly going its own way). Then we outright joined Berne in 1988.

    Now finally in 1998 we have the Sonny Bono (a.k.a. Disney Payoff) Act. Yes, slimy, and yes, Disney deserves the barbs it gets for that.

    But spare us the false implications that “Disney and other media corporations” are behind the term length being raised all the way from 14 (really 28) years to its current ridiculous length.

    1. Dan Kennedy

      @Rich: According to this, copyright was 28 years until 1976, though you could apply for another 28-year renewal. Your analysis of the politics behind the Copyright Act of 1976 awaits. I am reasonably sure that we didn’t play along to make Switzerland happy.

  8. Mike Benedict

    @Rich: There’s no reason to pretend that support of international treaties is unique to liberals. The Republicans push every free trade act under the sun, some of which even help our country.

    @Dan: Insofar as “it’s not taking a penny out of either King’s or Taylor’s pockets,” I am among those who think 57 seconds is beyond any fair use. I would hope that the GOP is paying a licensing fee. If not, then in fact the GOP is robbing the artists.

    1. Dan Kennedy

      @Mike: Hmmm … I’m not going to buy “James Taylor’s Greatest Hits” because I can call up the Republican ad on YouTube anytime I like and listen to 57 seconds of “You’ve Got a Friend”? OK.

  9. You make it sound like the original copyright term was for 14 years and the first copyright extension act extended it to 28. Originally it was 14 years with another 14 year renewal term. Older works might have had a copyright of a little as 14 years (if the author saw no reason to renew. For example if they were no longer publishing the work.) but even the first copyrighted works could have had 28 years of protection.

    I have a little trouble with the idea that the public can demand greater fair use in exchange for the media companies demand for longer copyright duration. Instead why don’t we find durations that are reasonably fair for both? A fair use fight is harder to do without bringing into court, and that makes it harder to use. It also seems to me that media companies are taking a tighter view of fair use in the period since the last copyright extension. Things that used to be slide (the Simpsons on a small TV in the corner of a documentary. A ringtone plays a known song, etc) are now fought by the copyright holders.

    Although the effect on the potential market of the original work is a fair use defense, some courts have viewed it terms of the producer of the derived work or the consumer, rather than the worth based on the publisher of the original work. A 60 second “Ken Burn’s” style panning on still photographs needs some sort of musical backing to it. If they didn’t take the work, then the likely would have had to buy some sort of music for it. Buying the rights to a song that would have the same nostalgic reaction as a famous 39 year old folk song would be pricey. (Besides the intellectual “lefty leaning folk artist” aspects to thinking about James Taylor, there is also an implicit “Things were better back then” that many will feel when they hear songs of their youth.)

    I’m also not sure of the 57 second excerpt out of a nearly 5 minute song argument. One reason why it is only a a minute long excerpt is because that commercials are about a minute long. They couldn’t have excerpted more in the format of their work. They didn’t take all, but they took all that would fit. Also, substantialness of a work doesn’t have to be measured in time, words, or square inches because not all parts of a work have the same importance or impact. (excerpting the heart of the work is viewed as taking a more substantial part of it than larger pieces that are less critical) If they had used the whole chorus, I would think that might be considered the heart of the work. Since they seem to end at the start of the chorus, could that be a piece of the heart of the work?

  10. C.E.Stead

    DK – they haven’t actually internalized such arguments. They merely seek any handle they can to bash Republicans, even if it’s a boomerang. Have Democrats everywhere checked with the artist before using music, or do they merely assume that because they ARE artists, they must be Democrats?

  11. C.E.Stead

    Also – as far as ‘stealing’ goes, the ad is on YouTube. Searching YouTube for James Taylor yields ‘about 212,000’ hits. A clip of Taylor and King singing ‘You’ve Got a Friend’ has had about 1.9 MILLION hits, with no objection. As far as YouTube goes, it would seem that the artists have little objection to ‘fair use’.

  12. Mike Benedict

    @Dan: “Hmmm … I’m not going to buy “James Taylor’s Greatest Hits” because I can call up the Republican ad on YouTube anytime I like and listen to 57 seconds of “You’ve Got a Friend”? OK.”

    Of course not. But by that logic, you probably wouldn’t pay for anything less than the full song, in which case everything becomes fair game for others to use. So whether Dan Kennedy the consumer would pay to “use” the song (in this case, “use” would mean “listen to”) really isn’t the issue, is it?

    Instead, it’s whether *anyone* — in this case, the GOP — wants to use it (“use” in this case means for advertising purposes). Is this really different from the typical radio station that plays music in order to attract an audience to whom they can then sell something? The listener doesn’t pay for the music, but the station provides a royalty to the artist. King and Taylor should receive a royalty every time their song is used.

    Taking the argument one step further, if King and Taylor were to put on a concert to benefit Patrick, the donations would fall under federal law. For Baker to use their work to benefit his campaign is the same thing, no?

  13. L.K. Collins

    Dan in his statement on BMG correctly points to the four prong test for establishing a violation of copyright.

    Failure on any one of the tests means failure of the claim in its entirety.

    Nature of the piece fails because of the not-for-profit nature of the use. Dan’s suggestion of political speech being granted high levels of protection gives a second reason why a claim on this element of the test.

    Impact on the market? How is the claimant going to address the obvious absurdity of the claim sufficient to satisfy hte requirements of the test? It could be argued that the exposure could increase the sales to the benefit of the claimant — hardly damages in the legal sense.

    As for the discussion of how long a copyright can be enforced? The public policy of copyrighted materials entering the public domain has long been decided. The question is just when.

    Perhaps 21 years or the death of the author, whichever comes first, would be a good compromise between the private and the public interests.

    1. Dan Kennedy

      Failure on any one of the tests means failure of the claim in its entirety.

      No, it’s a balancing test. Cases are decided on a case-by-case basis. Entirely up to the judge how to apply the test, within certain guidelines, of course.

  14. Michael Pahre

    Dan, in the link you’ve misread the length of copyright prior to the 1976 act. The length of time was 28 years initially (if copyright was claimed by printing on the original document) which could be further extended by another 28 years (if the copyright holder applied for an extension prior to its expiration) for a total of 56 years.

    The reason why Congress address the copyright issue in 1976 was that all works prior to 1923 were already in the public domain, while works of 1923 and later were about to begin entering the public domain in 1979 unless Congress acted. (The same imminent risk of works entering the public domain led to the Mickey Mouse Act of 1998, which extended, yet again, the length of the copyright period.)

    In 1976 Congress changed the full copyright term from 56 years to 75 years or life+50 years. The Mickey Mouse Act of 1998 changed the terms to 95 years or life+70 years.

  15. Michael Pahre

    I’m surprised nobody is raising the historical example of McCain’s campaign in 2008 who, during their campaign events, liked to play songs copyrighted by artists who objected to their use in a Republican event.

    Some sued over copyright infringement, but the McCain campaign had apparently done their homework and paid for a license to use the works. McCain’s campaign was acting lawfully, and the copyright holders could do nothing about it.

    In the Baker ad, the issue would go away completely if they likewise have paid for a license to use the work. Nobody seems to have reported one way or another on that point.

  16. David Byrne of Talking Heads sued Fla. Gov. Charlie Crist for appropriating the 1985 single Road to Nowhere for an ad. Jackson Browne sued and won against John McCain for the latter’s use of Running on Empty during the ’08 campaign without Browne’s approval. The issue goes beyond copyright infringement or using the artist’s work without compensating the artist. As with the present situation involving King & Taylor (whose TD Garden concert earlier this year was great, by the way)there is also a Lanham Act count for creating the impression that the performers endorse the candidate and/or his positions by lending their talents to the pol’s ads. That’s what has these decidedly Democrat-leaning musicians in an uproar about being appropriated by GOP candidates.

  17. Mike Benedict

    @sheldon: That’s interesting, because there have been some (now older) court decisions that ruled that when a company links without permission to another via the Internet, that could be considered an implied business relationship, and one that could potentially damage the reputation of the linked to party. What you point to follows a similar line of thought.

  18. @Jerry Ackerman and @Michael Pahre: Performing Rights groups like ASCAP and BMI only handle the compulsory performing rights. (playing a prerecorded song during a campaign event would be the performing of that song.) Using a song in a movie, commercial, video game, etc. requires a synchronization license. Since sync licenses are not compulsory, the artist (or whoever they sold their right to) has much more say in how their work is used in TV commercial than at a campaign rally.

    That also has some bearings on @C.E.Stead’s comparison between allowing (or not) the use of the song in an ad and finding it on Youtube. (although when you find music tracks on youtube, they usually have video added to it, I guess it would be a short film and needing sync rights as well.) Unlike trademarks, copyright don’t need to be vigorously defended in order to be kept. They ignore the fact that the youtube video doesn’t pay BMI for performance rights. They could even play it on youtube daily to increase its hit count (and give asense of popularity) but still having a different opinion about the ad and whether to allow a sync license for it.

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