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Music rights are "Fair Use?"

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walter biscardi
Music rights are "Fair Use?"
on Nov 20, 2008 at 8:54:41 pm

For those who didn't know, Jackson Browne has a lawsuit pending against the McCain campaign here in the U.S. for the unauthorized use of his song, "Running on Empty" in a McCain campaign commercial.

The McCain campaign just filed two motions, one of which claims the use of the song as "fair use." I've never heard of anyone trying to justify the use of original, copyrighted music as "fair use" in a commercial. This will be interesting to see if this is accepted as it could open a floodgate for people to claim the use of music as "fair use" for just about anything a lawyer can justify.

The second motion actually countersues Jackson Browne saying his original lawsuit has a chilling effect on free speech. That seems pretty outrageous as well.

here's the whole story

http://www.msnbc.msn.com/id/27820970/


Walter Biscardi, Jr.
Biscardi Creative Media
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bill dewald
Re: Music rights are "Fair Use?"
on Nov 20, 2008 at 9:25:38 pm

How do they have any money left for this?

The "political use" vs. "commercial use" argument is the only sane point. After all, if a politician can't get any hip musical artists to support him, he's fighting at a disadvantage. Is that fair? Probably.

I think the McCain camp was really hoping that they could get away with it. And I hope that was a big mistake.


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Eric Susch
Re: Music rights are "Fair Use?"
on Nov 20, 2008 at 10:23:35 pm

The McCain campaign also complained about their own videos that were removed from YouTube for copyright violations, even though YouTube was complying with the DMCA which McCain supported. I guess he should have thought of the implications of that law before he voted for it.

http://www.theregister.co.uk/2008/10/15/mccain_campaign_wants_youtube_dmca_...

These two incidents just prove that it isn't just the younger generation that feels all entitled when it comes to copyright.


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Mark Suszko
Re: Music rights are "Fair Use?"
on Nov 21, 2008 at 6:13:46 pm

I just want a law that says a decision-maker will fully read and comprehend the Springsteen lyrics to "Born in the USA" before stupidly suggesting it as a $%#%^$ campaign song or 4th of july fireworks backing track.

And there goes my blood pressure again...


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Ron Lindeboom
Re: Music rights are "Fair Use?"
on Nov 21, 2008 at 7:05:45 pm

Yes, Mark, I always smile whenever people use "Born In the USA" as a song of patriotism. It just confirms to me that many people don't really listen to words, focusing instead on the ones that get repeated over and over.

:o)

Ron Lindeboom


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moody glasgow
Re: Music rights are "Fair Use?"
on Nov 21, 2008 at 8:57:17 pm

Well if you repeat it often enough, and loud enough, most people will believe it.


moody glasgow
editing.compositing.design


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Andrew Commiskey
Re: Music rights are "Fair Use?"
on Nov 22, 2008 at 1:17:55 am

In the words of Tommy Smothers at the 2008 Emmys.

"Just one last thought... There's one word that exist in every language on the face of the earth,
in every society from the time of man beginning to speak, and the word is Truth. It exist in every language and it means exactly the same thing.
To remind you of what it is
Truth is what you get other people to believe..."
Thank You

Seems appropriate

Drew

Chaos is the beginning of everything.


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walter biscardi
Re: Music rights are "Fair Use?"
on Nov 22, 2008 at 3:22:09 am

[Mark Suszko] "I just want a law that says a decision-maker will fully read and comprehend the Springsteen lyrics to "Born in the USA" before stupidly suggesting it as a $%#%^$ campaign song or 4th of july fireworks backing track. "

Amen to that brother.



Walter Biscardi, Jr.
Biscardi Creative Media
HD and SD Production for Broadcast and Independent Productions.

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Bill Davis
Re: Music rights are "Fair Use?"
on Nov 22, 2008 at 10:32:50 pm

Aw come on, Mark.

If knuckleheaded brides could decide to walk down countless aisles to the "romantic" strains of Sting's uber stalker song "Every Breath You Take" - and legions of little kids across America can now safely mime on grade school stages to the Village People's YMCA blythly unaware of it's arch 1970s gay cultural genesis - we can surely tolerate the politicos who use Springsteen - someone I've idolized since I bought Greetings from Asbury Park the week it was released - never "getting" the fundamental message of the songs they're using.

Heck, a lot of us know video guys who work these political gigs and I couldn't find it in my heart to stick the ones who work the RED side of the aisle with nothing but Lee Greenwood, Hank Jr. and The Big & Rich guy. Without tossing in at LEAST some Emmylou, Dolly, or some Charlie Daniels - it's would be Cruel & Unusual Punishment, defined.

On second thought, I could live with Greenwood simply being snatched by federal marshalls - confronted by Stacy from "What NOT to Wear" - and having a permanent federal injunction against FRINGE levied against him.

On third thought, perhaps someone should pass a law that all political campaigns have to use BUYOUT music.

That would show them!

Just rambling here...





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Timothy J. Allen
Re: Music rights are "Fair Use?"
on Nov 23, 2008 at 1:26:54 am

So... Did the McCain campaign make an agreement (with consideration) to get the rights? If not, I don't see it as much of a case. If musicians aren't paid for their work, that creates more than a chilling effect - it puts them out of business. If the rights were paid for, then Jackson Brown has no case.

Sure it's simplistic, but if I were a judge, I'd simply ask for the documentation. The politics of the players doesn't matter to me. It's certainly not a chilling effect for political speech if McCain campaign didn't have an agreement for the rights.

If the judge says that's the case, why not have every amateur video editor claim they ought to be able to use Van Halen music and Barbie and GI Joe dolls in their cheesy car commercials. Charging a million dollars for those rights "puts a chilling effect" on my ability to compete with those agencies that can afford to pay that amount for those rights. ;-)
(Hope I don't have too much of an accent with my tongue this far in my cheek.)



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David Roth Weiss
Re: Music rights are "Fair Use?"
on Nov 23, 2008 at 2:25:23 am

[Timothy J. Allen] "Did the McCain campaign make an agreement (with consideration) to get the rights? If not, I don't see it as much of a case. If musicians aren't paid for their work, that creates more than a chilling effect - it puts them out of business. If the rights were paid for, then Jackson Brown has no case."

My understanding of the matter is that, at some point, the McCain people were issued a cease and desist order. Then, they asked for, but were denied permission to use the song. However, they went ahead and used the song anyway.

In many copyright cases that type of disregard of a warning by the owner has been grounds for the reward punitive damages, which can pay many times over the standard damages typically awarded. So, the RNC may be in for a rather substancial bill if the don't prevail.

David Roth Weiss
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Eric Susch
Re: Music rights are "Fair Use?"
on Nov 25, 2008 at 2:17:28 am

I'll never forget the day that I was told to cut high school football footage destined for an award dinner, to the triumphant notes of "We Are the Champions" by Queen. Half way through the session I couldn't stand it anymore. I turned and said, "You know this song is about gay pride, right?"

And then there was silence...



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Bob Bonniol
Re: Music rights are "Fair Use?"
on Nov 23, 2008 at 4:07:36 am

The campaigns first amendment complaint is that they were using the song in the context of political speech, and that curtailing that is what the 1st amendment specifically is targeted at... (among other things).

So.... I guess (and I'm just 'trying' to analyze this from their legal/opportunistic perspective) they are claiming that they made 'fair use' of the song by, uh, what ? Parody ? Parody is definitely defendable fair use. But that seems contrary to the 'spirit' of the ad I saw which clearly had the tune as being supportive of the McCain message.

But Parody is pretty wide ranging in definition. It's NOT inconceivable to me that the RNC could support a fair use claim in the cloak of political commentary via parody. Remember: These guys successfully put an administration in place that ruled the free world via COURT ORDER. Whatever your politics might be, you have to admire their super jedi use of litigation for political end. You think they're afraid of copyright p'shaw...

Much love to some old cows around here... Long time...

Bob Bonniol


MODE Studios
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Contributing Editor, Entertainment Design Magazine
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Live & Stage Event Forum Leader
HD Forum Leader


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Nick Griffin
Re: Music rights are "Fair Use?"
on Nov 23, 2008 at 5:56:40 pm

"Ohh, Doctor, my eyes..."


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Mike Cohen
Re: Music rights are "Fair Use?"
on Nov 23, 2008 at 11:04:10 pm

was McCain using the song to promote himself or to attack his opponent. "Running on Empty" seems to describe running without any energy or substance, realizing your life has passed you by and that you are out of steam. If McCain was using this to describe himself, then Jackson Browne should drop his case, as this would be another example of a politician not reading the lyrics.

The Born in the USA comments are the most telling of all. Springsteen must get a good laugh when that song gets used for pretty much any reason.

Mike


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