TPM blows facts, law in piece on campaign music

Talking Points Memo has yet another piece about campaigns' use of music, and the legal troubles that sometimes follow. It's an interesting topic (one with which I admit I'm a bit obsessed), and there are plenty of interesting things to be said. Unfortunately, TPM apparently thought it would be more fun to engage in a partisan rant than to do the hard work necessary to get the facts and the law right. And so it didn't.

The law of music copyright is complicated, and the legality of different types of uses depends on the facts. So I'm not going to comment on whether all of the incidents TPM mentions actually qualify as infringements. But I'm intimately familiar with the McCain campaign's experience with music, and thus I have no trouble saying that TPM got virtually everything wrong when it turned to that topic. Wrote TPM:

[The] McCain campaign ... was practically a walking Limewire setup. Jackson Browne also sued it for using his song "Running On Empty" in an ad, for which the two sides later reached an out-of-court settlement. Van Halen objected to McCain's use of their song "Right Now" at a rally. The Wilson sisters from Heart strenuously objected to his campaign's use of "Barracuda" to promote Sarah Palin. And finally, the McCain campaign used "Pink Houses" and "Our Country" by John Mellencamp, who sent a letter demanding that they stop.

Practically like LimeWire, the p2p network that was recently held liable for inducing infringement on a massive scale? Cheap, and totally inaccurate, shot. First, Jackson Browne did not sue the McCain campaign. Rather, he sued John McCain in his personal capacity. Second, the McCain campaign did not "us[e]" Running on Empty in an "ad." What actually happened, as detailed in this sworn declaration, is that a staffer at the Ohio Republican Party made a video that used the song, and posted that to YouTube.

TPM's reference to the complaints from John Hall, Van Halen, Heart, and Mellencamp is even farther off the mark. Had TPM taken a few minutes to do some reporting (like, say, Politico did back in 2008), it would have been forced to point out that the campaign's uses of these songs at rallies was perfectly legal. As Politico accurately reported:

What do all the cease-and-desist letters and testy calls [regarding performances of songs at rallies] amount to legally, though? Not much, if the songwriters licensed the public performance rights to their music to the American Society of Composers, Authors and Publishers or Broadcast Music Inc. And the vast majority of artists, including Heart, have done that. Buying an ASCAP or BMI license allows a venue (or a campaign, if it purchases a traveling blanket license) to play any of about 8 million songs during their events. Though it might be a nice courtesy, the licensees are not obligated to call the artist to discuss.

The McCain-Palin campaign told Politico that in 2007 it purchased both ASCAP and BMI licenses that cover the use of tunes for all public events. Campaign spokesman Ben Porritt said, "Our campaign respects copyrights and obtains licenses whenever the law requires, and any suggestion otherwise is flat wrong."

In other words, the McCain campaign paid good money for licenses that gave it the right to play songs written or recorded by artists including Hall, Van Halen, Heart, and Mellencamp (and millions of others). And it explains why, for all the noise they made in the press, these artists never made actual legal claims: they had no valid ones.

Also, it's worth casting a skeptical eye on the TPM piece's implication that Republican campaigns are somehow less respectful of copyright than Democratic ones. I don't think anyone ever has done a rigorous study of this topic, so I can't say for sure, but I strongly suspect the apparent imbalance of complaints against GOP campaigns stems from a simple fact: the vast majority of recording artists are liberals and Democrats. (But see John Rich -- and Daddy Yankee! Dame más gasolina!) And they understandably don't like Republicans using "their" songs (even as they happily cash their ASCAP and BMI checks, derived in part from Republican campaigns' license fees). If a Republican uses their songs, they run to the press. But if a Democrat does the same, even without permission, they are likely to look the other way.

Lastly, is a publication that routinely records and posts to YouTube lengthy excerpts from TV broadcasts, while slapping its own logo on others' copyrighted works, really criticizing others' copyright practices? Really??