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Music Republicans Idle Politics

Eye of Tiger Composer Sues Gingrich To Stop Campaign From Using Song 452

Posted by samzenpus
from the it's-the-thrill-of-the-fight dept.
First time accepted submitter Joe_Dragon writes "The composer of the Survivor hit Eye of the Tiger has sued Newt Gingrich to stop the Republican presidential candidate from using the Rocky III anthem at campaign events. The lawsuit was filed Monday in federal court in Chicago by Rude Music Inc., the Palatine-based music publishing company owned by Frank Sullivan, who, with Jim Peterik, composed the song and copyrighted it in 1982. The lawsuit states that as early as 2009, Gingrich has entered rallies and public events to the pulsing guitar riffs of the song. In a lengthy section of the five-page complaint, Rude's attorneys point out that Gingrich is well aware of copyright laws, noting he is listed as author or co-author of more than 40 published works and has earned between $500,000 to $1 million from Gingrich Productions, a company that sells his written work, documentaries and audio books. It also notes Gingrich's criticism of the 'Stop Online Piracy Act' during a recent debate in South Carolina, where Gingrich suggested the law was unnecessary because 'We have a patent office, we have copyright law. If a company finds it has genuinely been infringed upon, it has the right to sue.' The suit asks for an injunction to prevent Gingrich from using the song, as well as damages and attorneys' fees to be determined by the court."
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Eye of Tiger Composer Sues Gingrich To Stop Campaign From Using Song

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  • My guess (Score:5, Insightful)

    by Krojack (575051) on Tuesday January 31, 2012 @12:22PM (#38878193)
    Deep down inside they are suing because they don't like Gingrich. Just my guess though.
    • Re:My guess (Score:5, Funny)

      by Talderas (1212466) on Tuesday January 31, 2012 @12:33PM (#38878345)

      My guess was that the Slashdot collective was going to have an anuerysm over deciding which side to pick. On one side of the ring you have despicable Republican Newt Gingrich. On the other side you have evil copyright.

    • by Dhalka226 (559740)

      Oh, I'm sure you're right. Copyright law gives them the right to control distribution and public performance, however, and it makes no mention of what motives they may use to do so.

      Frankly I consider it win-win: Either a judge finds copyright law absurd and lets Gingrich keep using it in pretty clear violation of copyright, or he orders him to stop and Gingrich gets spanked for his double standard. (Or he stops using it voluntarily, which I basically consider to be a non-judicial spanking in this case.)

      • Re:My guess (Score:4, Informative)

        by cfulmer (3166) on Tuesday January 31, 2012 @05:11PM (#38881953) Homepage Journal

        Problem, though, is that the Gingrich campaign probably has a blanket license from ASCAP or BMI which would cover what he's doing with this song. Political campaigns always get them, even though the artists whose songs are used sometimes don't like it. After the Gingrich campaign sends a copy of the license, the suit will be quietly dropped, having done what it was intended to do -- express displeasure at Gingrich.

        Alternatively, the campaign may stop using the song because the distraiction isn't worth it. If that's the case, then this really is abusive.

  • Fair Use? (Score:3, Funny)

    by cayenne8 (626475) on Tuesday January 31, 2012 @12:23PM (#38878201) Homepage Journal
    Wouldn't his use of the song clip...be considered fair use?

    He's not generating profit from this.

    He's not playing the entire performance of the song...

    • Re:Fair Use? (Score:5, Insightful)

      by morcego (260031) on Tuesday January 31, 2012 @12:27PM (#38878263)

      He's not generating profit from this.

      EXCUSE ME ?!?!?!?!?!

    • Re: (Score:3, Insightful)

      by Anonymous Coward
      Odds are it's not fair use, but they probably paid license fees to the necessary collection agencies to use the song. This is just the "creator" disliking the way the song is used which, despite bad publicity, is generally not illegal.
      • Re:Fair Use? (Score:5, Informative)

        by JWW (79176) on Tuesday January 31, 2012 @01:14PM (#38878967)

        Yep. If he paid public performance fees to play the song, then the composer should sit down and shut up.

        Or.

        They could give back all the ASCAP fees they've collected and do all the licensing for the song themselves.

        Basically the rules, as cumbersome and bad as they are, allow you to play the music you want if you've paid the licensing agency.

        These artists WANT these large onerous licensing agencies representing them, until someone they don't like plays their songs.

        Tell you what, if you want to bitch about politicians playing your songs, dissolve ASCAP, get rid of their ridiculous licensing BS, and do it all on your own. That's fair.

    • by Sockatume (732728)

      Fair use is slippery. There are situations where reproducing a whole text would be considered fair use, and situations where reproducing just a snippet would not be. In this instance a very distinctive part of the song is being used, promotionally, uncritically, and without modification so I'm not sure it really escapes.

    • Wouldn't his use of the song clip...be considered fair use?

      Probably not.

      He's not generating profit from this.
      He's not playing the entire performance of the song...

      While those both relate to factors that are relevant to fair use determinations, the two of them together don't automatically mean that something is "fair use".

    • Re:Fair Use? (Score:5, Interesting)

      by Phreakiture (547094) on Tuesday January 31, 2012 @12:36PM (#38878407) Homepage

      He's not generating profit from this.

      I'm not sure that's a correct statement. Maybe it isn't direct, but he is using it in what essentially amounts to advertising. These events are not private parties, so the private party exemption (specific to music) is also gone.

      I do believe, however, that Rude Music is in for a rude awakening because of a thing called compulsory licensing. In essence, they can collect money for their product, but they have to offer it to all comers, and, if memory serves me, they must do so with non-discriminatory pricing.

      • Re:Fair Use? (Score:5, Informative)

        by Rockoon (1252108) on Tuesday January 31, 2012 @12:53PM (#38878671)
        The song in question is covered under ASCAP licensing. [ascap.com]

        As long as the venue has made its yearly ASCAP tribute payment that never gets to the authors, there is absolutely nothing the authors of this song can do about it.
        • For example, a talk show radio host. He plays various intro and exit music, definitely covered under payments.

          But what if he picks a song as his theme song and plays it constantly? I wouldn't think that would be covered under ASCAP any more than someone wanting to use a song in a movie.

          Sounds like Newt's using it as his theme.

      • I'm fairly sure that public performance isn't ACTUALLY subject to compulsory licensing. It's just that virtually anyone who has enough money to bring a frivolous lawsuit is a member of a PRS like ASCAP or BMI. That said, including the 'right of public performance' in copyright seems totally idiotic to me in the first place. It's not producing a copy in a manner that couldn't be widely done before the printing press, and it conflicts with free speech. I can sort of see an argument for radio airplay, but
    • Not even remotely. Using it publicly in a for-profit (all politics is for profit) situation without paying any kind of license fee is definitely enough to get you sued.
    • Re:Fair Use? (Score:4, Interesting)

      by Gideon Wells (1412675) on Tuesday January 31, 2012 @12:57PM (#38878739)

      You would need to be a lawyer, practically, to know how fine this line is. For example, http://www.huffingtonpost.com/2012/01/28/nbc-mitt-romney-tom-brokaw-ad_n_1239107.html [huffingtonpost.com] . Romney's use of that news footage in an advertisement is likely Fair Use.

      Gingrich is using the music for self-promotion at campaign events. Definition/standards of fair use: http://en.wikipedia.org/wiki/Fair_use#Purpose_and_character [wikipedia.org]

      0) ". . .for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." It is none of these.

      1) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;" - Technically non-profit, but not for an educational purpose. Well, unless you count used to introduce a candidate to an event where he is educating them about himself. I think that is a bit too broad to work.

      2) "the nature of the copyrighted work" - Neither a fact, idea or something as important to the public as the Zapruder film.

      3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and" - The whole thing isn't being played, but how much of it?

      4) "the effect of the use upon the potential market for or value of the copyrighted work." - I don't think this would be allowed to apply here. If the song can be blasted in part for this event, why not others? At that point the value of the song begins to go down due to over use.

      It could go either way, but I'm leaning against fair use. I'm leaning enough against it that I expect this to be quietly hushed up with a settlement.

  • by interkin3tic (1469267) on Tuesday January 31, 2012 @12:23PM (#38878203)
    We go through this every election cycle. Stop using music. Just shuffle off the stage. Maybe when you're awkwardly doing so, think about changing music copyright laws if you get elected?
    • by DanTheStone (1212500) on Tuesday January 31, 2012 @12:33PM (#38878347)

      Why would they need to change the laws? They probably aren't breaking them, musicians just don't like their music being used by politicians they disdain. That doesn't make it illegal.

      http://www.techdirt.com/articles/20110705/03482614973/dear-musicians-once-again-politicians-can-probably-play-your-songs-events-without-your-permission.shtml [techdirt.com]

      • by interkin3tic (1469267) on Tuesday January 31, 2012 @12:42PM (#38878503)
        My thinking was "While these musicians are annoying you, maybe shorten the copyright on them so their grandchildren won't be profiting off of them. Tit for tat."
      • by crmanriq (63162) on Tuesday January 31, 2012 @01:06PM (#38878853)

        As long as the music is not tied to any particular part of the event, it's covered under a venue's ASCAP license.

        But.

        If the music is synchronized to a video montage, or used as part of an announcement or otherwise synchronized with something, the campaign has entered into the area of "Synchroization Rights". These are covered on a contract-by-contract basis between the music publisher and the user.

        "A synchronization or "synch" right involves the use of a recording of musical work in audio-visual form: for example as part of a motion picture, television program, commercial announcement, music video or other videotape. Often, the music is "synchronized" or recorded in timed relation with the visual images. Synchronization rights are licensed by the music publisher to the producer of the movie or program." (http://www.ascap.com/licensing/termsdefined.aspx)

    • by Baron_Yam (643147)

      Or, you know, pay for the song's use.

      Shouldn't legislators follow the rules they love so dearly that they're campaigning to make more of them?

      • by Penguinisto (415985) on Tuesday January 31, 2012 @12:50PM (#38878627) Journal

        He likely already did.

        There was a similar flap years ago between Chrissie Hinds (of the Pretenders) and Rush Limbaugh, who was using her song "Back to Ohio" as his opening and bump music. Thing is, Limbaugh paid the ASCAP and other associated licensing fees, so Hinds was basically told to bugger off (numerous times, and publicly on his show). I think she tried to sue, but discovered that she really couldn't do a damned thing about it.

        My guess is that something very similar is the case here. Gingrich's campaign likely paid all the fees, and barring evidence otherwise, this guy is likely going to get told basically the same thing.

        • by X0563511 (793323)

          The publisher is the one acting, not the artist. Big difference.

        • Re: (Score:3, Informative)

          by asdbffg (1902686)

          ASCAP/BMI/SESAC licensing fees cover public performance of a copyrighted work, which includes playing the recording in a bar, a cover band playing the song in a venue, playing the recording over the radio or on television, etc. The intention is to funnel some of the money that the venue is earning from playing your song back to the artist. These amounts tend to be relatively small, but prevent situations where radio stations, say, can make tons of money off of advertising around your song without paying any

    • by Sockatume (732728)

      How about, when they want to use someone's music as their theme tune, they ask them first? Throw a few cents their way? Maybe think about not being a dick, in addition to whether their actions are legally defensible?

    • We go through this every election cycle. Stop using music. Just shuffle off the stage. Maybe when you're awkwardly doing so, think about changing music copyright laws if you get elected?

      Or, do what Mitt Romney did with Kid Rock, and ask permission from the creator before using their work.

      Its fairly easy to avoid the situation that Gingrich is in where he got a C&D from one artist one day and a lawsuit from another the next without changing copyright laws or avoiding music altogether.

    • Dear republican candidates

      You address your message only to Republican candidates? You are part of the problem.

      Maybe when you're awkwardly doing so, think about changing music copyright laws if you get elected?

      Do you want to know how congress 'fixes' this kind of thing? They create a special exemption for themselves. Like they are doing with their insider trading bill (which gives them MORE freedom to do insider trading than current law), and like they've done with the FOIA (they don't need to respond to FOIA requests).

  • <blatant partisan thinking>

    the one good use of coyright law

    </blatant partisan thinking>

  • He needs a more appropriate song.
  • More likely than not, he's registered with BMI or ASCAP. You can purchase global rights through those agencies. I'm fairly certain Gingrinch's campaign has dotted that 'i' and crossed that 't'.

    If he hasn't then by all means tear him up - I hate the guy myself. But his is likely a case of a composer wanting to distance themselves from the politician who likes their music. That's not exactly a new phenomena by any stretch of the imagination.

    • "But his is likely a case of a composer wanting to distance themselves from the politician who likes their music. That's not exactly a new phenomena by any stretch of the imagination."

      Indeed, abusing the court system is as central to record labels' day-to-day business as is producing music.

    • by mybecq (131456)

      More likely than not, he's registered with BMI or ASCAP.

      Indeed, Eye of the Tiger [ascap.com] is available for public performance with ASCAP.

  • by goldaryn (834427) on Tuesday January 31, 2012 @12:26PM (#38878253) Homepage
    So many times, it happens too fast
    You trade your passion for glory
  • by RichMan (8097) on Tuesday January 31, 2012 @12:29PM (#38878283)

    File take down notices and get the web sites black listed.

  • Interesting etiology: The word privilege comes from private law [reference.com].

    Newt and those in his circle have it, and aren't used to being told they have to follow the same rules that the rest of us do.

  • by dmacleod808 (729707) on Tuesday January 31, 2012 @12:31PM (#38878319)
    Is that Jim Peterik, the co-author, is not suing, and doesn't mind that Gingrich uses it... "Chicago-born Frankie Sullivan co-authored the Grammy award-winning song with fellow Survivor founding member Jim Peterik. However, Peterik is not party to the lawsuit and reportedly said that he didn't have a problem with Gingrich using it, according to a Sun Times report." http://www.ibtimes.com/articles/290196/20120131/gingrich-sued-copyright-infringement-eye-tiger-rocky.htm [ibtimes.com]
  • by dmomo (256005) on Tuesday January 31, 2012 @12:32PM (#38878335) Homepage

    I guess they don't sue on behalf of actual artists.

  • by XxtraLarGe (551297) on Tuesday January 31, 2012 @12:36PM (#38878399) Journal
    I don't know why they don't check for permission first. Besides, Grinch Neutron hardly strikes me as a "Tiger". He probably should have contacted Ted Nugent and got the rights to "Cat Scratch Fever", would have suited him better.
  • That's pretty bad. Those guys haven't had a hit since Day-Glo Reeboks were still in style.

    On the upside, the Gingrich campaign offered him a settlement of 1 month's rent and a case of Thunderbird.

    Seriously, if you're a Republican, wouldn't it be much wiser to use Country music anyway? It's not like any Republican has ever gotten tired of hearing "God Bless the USA."

    • by HBI (604924)

      Speak for yourself, I hate that effin song. And i'm assuredly a Republican. Next thing, you'll be saying all Republicans want to ban abortion and birth control and be wrong again.

      Sometimes you're just a Republican because the other side is even more odious. Not to mention arrogant and presumptuous.

  • I wonder if Sullivan bothered to simply send a letter to Gingrich asking him to stop using it? After all, it's been YEARS... sounds similar to a submarine patent, right? If Gingrich ignored such a request, then he's got it coming to him. I would feel pretty slimy using a song if I knew the composer didn't like it. That being said, he might be rationalizing a bit since co-writer Peterik is OK with it. I'm not sure what bearing Peterik's wishes have on this, as I don't know if he has a share in Rude Music
  • I don't get it... (Score:5, Insightful)

    by c (8461) <beauregardcp@gmail.com> on Tuesday January 31, 2012 @12:45PM (#38878551)

    Why wouldn't a political candidate double check to make sure that the composers/artists/etc responsible for music their using in their campaign is, at worst, neutral towards them?

    Because, quite frankly, if I had total legal control over a piece of art that some dickwad I didn't like was appropriating for PR purposes, my first instinct would be to do my own counter-PR version and dump it on whichever public channels I could find.

    For instance, a youtube video set to "Eye of the Tiger" which just shows a picture of Gingrinch on a punching bag being pummeled by various disadvantaged types with captions explaining their beefs against him and the Republican party might be an effective way to develop a negative association between him and the song.

    Why in the world would a political campaign risk pissing someone off like that?

  • Legal update (Score:4, Insightful)

    by silas_moeckel (234313) <silasNO@SPAMdsminc-corp.com> on Tuesday January 31, 2012 @01:12PM (#38878937) Homepage

    So how long till political campaigns get a fair use exception written into law? They did it for the do not call list after all.

  • by darkpixel2k (623900) <aaron@heyaaron.com> on Tuesday January 31, 2012 @01:58PM (#38879469) Homepage
    In other news, a new bill has been introduced that exempts political candidates from using copyrighted works in their political ads. This will join the existing bill that exempts the idiots from telemarketing rules so they can call you whenever the hell they want with a recorded message asking for your vote. (Because I form all my political judgments from 30-second pre-recorded phone calls...)
  • by tompaulco (629533) on Tuesday January 31, 2012 @03:00PM (#38880211) Homepage Journal
    Newt Gingrich is using this song? Well, then it is clearly legally protected parody.
  • by Cutting_Crew (708624) on Tuesday January 31, 2012 @05:01PM (#38881821)
    Is he legally bound to ask or does he just do it to stay on everyones good side?

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