Intra-libertarian IP war: Rush v. Rand Paul

As first reported in the Louisville Courier-Journal, the libertarian-minded Canadian band Rush is battling the libertarian-minded Kentucky Republican Senate candidate Rand Paul over the latter's use of Rush songs in his campaign. Rush's attorney Robert Farmer has provided me the cease-and-desist letter he sent to the campaign May 25, demanding that Paul "immediately stop all use of Rush’s music and remove all references to Rush and their music in all campaign materials." Farmer's letter makes claims regarding three separate uses of Rush's songs by the campaign, each of which needs to be analyzed separately, and which I'll address in turn:

1) Use of songs in videos/ads. I haven't seen the videos (the one YouTube video referenced in the letter has been removed), so I'm reluctant to say for sure whether the uses at issue are infringing. But the general rule is that to incorporate music into an advertisement, one needs a license from the owner of both the sound recording (the record label), and the musical composition (the music publisher) -- which Farmer's letter certainly suggests the campaign lacked. If the campaign simply used Rush songs as the soundtrack for its videos/ads, it's unlikely it would have a successful fair use defense. Rush's claim here is likely valid.

2) Quoting from a song in a speech. Farmer's letter demands that Paul stop quoting lines from Rush songs in his campaign speeches. I don't know how extensive such quotations were. But let's assume they were just a few lines. If that is the case, it's hard to imagine any court would consider the use of such brief quotations in a non-commercial context anything other than fair uses. This would likely be a very weak claim.

3) Playing of songs at campaign events. This to me is the most interesting of Rush's claims. Normally, to play a song at an event, a campaign either needs to ensure that the venue has a public performance license, typically obtained from ASCAP, BMI, and SESAC, or it can obtain one itself. (When I worked on the McCain presidential campaign, we had ASCAP and BMI licenses.) Such licenses give the licensee permission to play any of the millions of songs in the PROs' catalogs.

"The Spirit of Radio," the song referenced in Farmer's letter, is licensed for public performance through SESAC. But what's interesting is Farmer's contention in his letter that "The public performance of Rush’s music is not licensed for political purposes: any public venue which allows such use is in breach of its public performance license and also liable for copyright infringement." I've looked at SESAC's licenses, and there's simply no exclusion for political uses (nor is there in ASCAP or BMI's). When I asked Farmer via email to explain his position, he was reluctant to go into much detail, but did tell me this:

Keep in mind that there is a chain of rights issue with the licenses issued by performing rights societies – they can only issue licenses for the rights they have obtained from the writer/publisher and subject to any limitations or exclusions.

In other words, Farmer is suggesting that the license that the writers/composers of Rush's songs issued to SESAC specifically excluded political uses. I haven't seen the agreement between those writers/composers and SESAC, so I can't say that he's wrong. But I can say that I've never heard of any contract with a PRO containing such an exclusion, and neither had several other copyright attorneys I asked.

But let's assume the songwriters/composers of Rush's songs actually did have such an exclusion in their contracts with SESAC. Farmer is correct: SESAC can't grant rights it doesn't have. So if SESAC couldn't grant rights (either to the venue or the campaign) for political uses, then those uses would indeed be infringing (though the venue or campaign might then have a claim against SESAC for misrepresenting that it had sufficient rights to allow them to publicly perform the songs). Of course, if neither the venue nor the campaign had a SESAC license, then the campaign is simply outta luck.

So what does the Paul campaign have to say about all this? Not much. The campaign has not responded to an email I sent this morning seeking comment. Farmer told me yesterday that the campaign had not responded to his letter. And Paul's campaign manager would only tell the Courier-Journal this:

The background music Dr. Paul has played at events is a non-issue. The issues that matter in this campaign are cutting out-of-control deficits, repealing Obama Care and opposing cap and trade.

Well, I'm sure the campaign would rather focus on subjects other than music licensing. But if it continues its current practices, especially with regard to ads and videos, it may not have much choice in the matter.