Why an Anti-Gay Rally Is Allowed to Use Your Music

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It was another shocking moment for a band with a popular song.  As Kim Davis stepped on stage in front of a cheering Christian extremist audience, Survivor’s ‘Eye of the Tiger’ played in the background, even though the band never offered their permission.  The members of Survivor simply don’t support the anti-gay rhetoric and stance of Kim Davis and her supporters, and more importantly, they didn’t want their song played during the rally.

That led to legal threats from the band’s founder, Jim Peterik.

 

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Simple violation of copyright?  Not at all: just days earlier, the members of R.E.M. railed against Donald Trump for playing “It’s the End of the World As We Know It (And I Feel Fine),” even though the band never would have authorized such use.  But in both the Survivor and R.E.M. situations, there’s little legal recourse the bands can take.

“…they’re in the clear.”

In fact, both Davis and Trump are completely within their legal rights to use whatever music they want, as long as they’re paying the appropriate performance rights organization ASCAP, BMI, SESAC, or GMR.  “In most cases, the event organizers have taken out a PRO license, so they’re in the clear,” explained Steve Gordon, a music industry attorney and author of the book, The Future of the Music Business.  “But even if they haven’t [secured the proper licenses], the artist still needs to demonstrate actual damages, which can be difficult.”

Those damages can theoretically reach $150,000 per infringed work, according to US copyright law.  But according to Gordon, a jury still has to award that, and in most cases, they’d never go that high.

There are other potential legal arguments, including trademarking and invalid associations with the band.  But those are theoretical, and totally untested in actual court.  Which means that in most cases, a band starts looking at legal costs, endless hassle, and time drain, most of these cases fizzle out quickly.

And if they don’t, they could be handing the right defendant a perfect amount of publicity.  “Trump would absolutely love a lawsuit from R.E.M.,” Gordon laughed.  “He’d relish that.”

Written while listening to Daniel Briegert.

10 Responses

  1. Professor Plumb

    I disagree with the certainty of this article that they “are in the clear”. First of all, Huckabee nor the County Jail had public performance licensing in place for this rally. Secondly, the PRO’s are very clear that even if a political event or campaign has licensing in place, they are NOT “in the clear”! This is due especially to “False Endorsement” and/or “Moral Rights” written into the agreements with the artists and writers at their respective record company and music publisher. Those “Moral Rights” clauses state that the record company or publisher are not to permit uses of the music for purposes of political endorsement, religion, product advertisements, adult films, etc. – without their express written consent. So the liability is also on the record company/publisher for the political/religious nature of the use – not just the politicians. Why wasn’t False Endorsement or Moral Rights taken into account for this article? It’s not as cut and dry as presented.

    Reply
    • Professor Plumb

      It is also interesting that the record company is involved in this at all, when there is no “terrestrial” public performance right in the U.S. for sound recordings.

      Reply
      • Insider

        …and it’s flatly incorrect to say that a plaintiff “needs to prove actual damages” which “can theoretically reach $150,000 per infringed work.” This is confusing apples and oranges; actual damages aren’t limited, if you can prove them, and statutory damages (which can reach $150k per work) do not have to be proven. If the songwriters can prove damages of $1M, they can sue for that; and if they can’t prove any damages at all, they can still sue for up to $150k.

        Reply
  2. Danwriter

    Candidate usurps song to buttress his message. Composer/artist takes to social media to complain and distance him/herself. Both parties enjoy momentary notoriety that advances each’s agenda, however slightly. Win, win. Lather, rinse, repeat.

    Reply
  3. Name2

    I’m pretty sure this article is rong.

    No one can stop Kim Davis’ down-home jug band from performing their speshul version of EOTT if the rights are paid, but public performance of a sound recording is, I’m pretty sure, quite a more complicated deal.

    Reply

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