Intellectual Property Law

McCain Wrongly Slammed as Copyright Infringer

By Tim Armstrong, Derek Bambauer, and William McGeveran.

John McCain is not a popular candidate among celebrity musicians and actors. My beloved Doonesbury ran a terrific week of strips making this point hilariously, with a Hollywood agent trying to line up a celebrity gala, starting here. There are no pretentious will.i.am/Scarlett Johansson videos for McCain.

But political disagreement with the man is no reason to make improper empty threats of copyright infringement suits against his campaign. As Politico reports, there has been a steady drumbeat of such bogus IP claims:

Cease-and-desist letters from musicians have rained down like confetti on Republicans over the years. But nothing compares to the virtual commune full of left-leaning artists who are mad at John McCain right now, though, in most cases, they have no legal basis to stop him from using their songs.

Some of the objections come from those whose songs get played at rallies or events — such as blasting Barracuda by the band Heart to welcome “Sarah Barracuda” Palin to the ticket at the GOP Convention. But apparently the campaign has purchased traveling blanket licenses from ASCAP and BMI. That provides public performance rights to almost any mainstream tune the Republicans might want to play at a live event. This is pretty much open and shut in McCain’s favor, at least on copyright issues.

Other complaints stem from TV advertisements. For example, Mike Myers threatened suit over a quick clip from Wayne’s World used in one of McCain’s ads attacking Obama’s supposed “celebrity.” (”We’re not worthy!”) The copyright issues are murkier when it comes to use of clips in television commercials, where the ASCAP and BMI licenses do not apply. But as I have argued before, these sorts of uses are clearly fair use: they are transformative, brief, and have little or no market effect.

I understand celebrities who want to prevent John McCain from borrowing any of their cachet to run for president. I don’t support him either. But bogus IP claims harm overall public discourse by discouraging people from exercising their rights to draw on content legally when communicating their ideas. All of us lose out when that happens.

Even worse is the suggestion that trademark or publicity rights might address a false impression that heart endorsed McCain. These weak theories should not trump the access provided under copyright law. Trademark fair use doctrine certainly has weaknesses, but I hope it is robust enough to prevent celebrities from strangling public debate with such a tenuous argument.

Besides, in this case the whole IP angle is unnecessary. Public denunciation of candidates by the celebrities they draw on does more than a lawsuit to right any wrong and correct any mistaken notion of endorsement. It can even become a phenomenon all its own. After all, what’s the last time you wondered, “Who do the Wilson sisters support for president?” Now you know.

Full post as published by Info/Law on September 17, 2008 (boomark / email).