Did Republicans Illegally Use "Barracuda" At The RNC?
Photo: Getty Images
Heart had, erh, heartburn on Thursday after the Republican National Convention used "Barracuda" when introducing Gov. Sarah Palin (R-AK) as the party's vice presidential nominee on Wednesday. In a written statement, the band asserted that "Heart did not and would not authorize the use of their song at the RNC." That makes it sound like the RNC violated copyright, doesn't it?
But Heart spoke a little bit too soon. You see, organizations don't have to go directly to the copyright holder to get permission to use their work. They can get a license from ASCAP, the American Society for Composers, Authors and Publishers. (Someone should tell the London Guardian editorial writers this inconvenient truth.)
According to The London Telegraph (and the Guardian), that's exactly what the the Republican National Convention did. A spokesman says that the RNC "paid for and obtained all necessary licenses" from ASCAP for all the music used at the event.
Assuming that the RNC did indeed get an ASCAP license (and why wouldn't they?), then they could legally use the song, assuming it's in the ASCAP database. (It is.)
ASCAP "licenses the right to perform songs and musical works created and owned by the songwriters, composers, lyricists and music publishers who are ASCAP members..." It's not clear to me which agreement would be used by a political organization... but in their brochure, "ASCAP Keeps You In Tune With Copyright Law" (pdf available here), ASCAP writes:
All public performances, even most non-profit ones, must be licensed... Although you can obtain permission directly from the copyright owner, it is generally less expensive and more convenient to obtain it through ASCAP.
More from the ASCAP website:
Through ASCAP, in one simple transaction, businesses can obtain the right to perform the millions of songs created or owned by more than 330,000 of America's and hundreds of thousands of the world's best songwriters, composers, lyricists and publishers. Founded in 1914, and still owned by and managed for its writer and publisher members, ASCAP grants businesses the permission they need to perform music publicly. The money collected is distributed, after deducting operating costs (currently 11.9%), directly to ASCAP members and to affiliated foreign performing rights organizations for their members.
I'm guessing an earlier Jackson Browne protest was also nullified by an ASCAP license.
Who knows if Heart has the power, as copyright owner, to prohibit any future use of the song? Not me. But they're certainly trying: the sisters Wilson had their attorneys write a cease-and-desist letter.
Comments
the Jackson Browne was a true infringement-that was a sync right not a public performance right
Do you know for a fact that no one got a license to use the Jackson Browne song in the advert?
The artist has the right to object when his or her music is being used in an event they disapprove of but they have no right to prevent the use if the venue holds the proper license. From what I read, they did.
Thanks, AP!
The RNC used the song legally if they got the proper ASCAP license, but they used it stupidly. Why would you use a song for this purpose without speaking with the artist? Now if Heart chooses to oppose McCain/Palin, the Republicans look stupid for using and promoting a song by Democratic supporters. It’s embarrassing, like when Twisted Sister asked that their song, “I Wanna Rock” not be used to introduce offensive baseball player John Rocker any more:
http://www.commondreams.org/views/020700-103.htm
When Heart says that they did not authorize the use of the song, I don’t think they are implying that any copyright was violated. I think they are just saying they do not support Palin and would not want their music used in that way.
Thanks, D … but it was Heart’s comment that started the feeding frenzy. :-/
And my initial check into the Jackson Browne story shows smoke, anyway. Reportedly (one news report with no source identified), Browne doesn’t allow his songs to be used in commercials. Note that the song was in a commercial created by a state republican party, not the RNC or McCain.
From everything I have read, indeed Hearts can’t forbid the Republicans to use their songs at a venue (it’s a whole other issue for commercials).
But it is indeed bad taste for Reps to use their songs if they object. I quoted on Slate’s forum the precedent of the use of “Born in the USA” by the Reps during the previous election. I think it is a similar issue. It is not illegal, just offending for the artist (and potentially his/her fans, which can be more damaging for a political party).
It’s a gray area. Broadcast and merchandising are two separate issues, covered by separate licenses.
The campaign (may have) paid for a license to play the song for entertainment purposes. If they did (and they say they did), they can play the song.
It’s possible that they may not have obtained a license from the band to use the song for the personal promotion of Sarah Barracuda. They must first obtain that from the artist–not ASCAP.
This is why artists sometimes issue separate licenses for advertisments/merchandising.
EX:
Company A wants to have a company picnic, and they want to play music at the picnic, so they make sure that either the venue has a license to do so, or they just get their own license from ASACP.
They cannot use the music they play to advertise or promote their product(s) at their company picnic or anywhere else. They need a separate license for that, and it must be obtained from the artist (or the artists management).
McCain/Palin used the song improperly. They should have asked for separate permission from the artist before using the song at their, uh, picnic, as association to/with Sarah Barracuda.
Word to the Wilsons…you can’t have it both ways. You can’t have your greed allow ASCAP to sell your work to the highest bidder and then indignantly protest that you weren’t asked. You sold it, you were paid–move on.
Using the Heart song Barracuda repeatedly in the McCain/Palin campaign simply shows the bad judgement of both John McCain and Sarah Palin. Obviously they haven’t listened to the lyrics of the song. Barracuda doesn’t flatter Ms. Palin.
But if the shoe fits wear it… and ironically it fits perfectly.
“If the real thing don’t do the trick
No, you better make up something quick
You gonna burn burn burn burn it to the wick
Ooooooohhhh, barra barracuda…”
The “barracuda” in the song refers to the band’s record company that created lies and rumors to increase record sales. The song was written as a reaction to an incident that occurred as a result of those lies.
From Wikipedia:
Ann Wilson revealed in interviews that the song was about Heart’s anger towards Mushroom Records attempted publicity stunt involving sisters Ann and Nancy and a made up lesbian affair. The song particularly focuses on Ann’s rage towards a fan who came up to her after a concert asking how her “lover” was. She initially thought he was talking about her then boyfriend, band member Michael Fisher. After he revealed he was talking about her sister Nancy Wilson, Ann became angry and went back to her hotel room to write the song.[1]
< < LYRICS REMOVED >>
Thanks, RJ.
All I know is that the RNC says it got the appropriate licenses. They knew that the convention was going to be broadcast — it seems logical to me (as a former meeting planner) that they would have taken this into account when securing licenses.
But I don’t know if they did or did not. I choose to believe their spokesperson until a higher authority says he was wrong.
I understand that copyright law in the US is complex: I’d argue (and have argued) that it is TOO complex (not to mention, w-a-y too long-lived). This brouhaha helps make that case.
Was the song used other than with Palin’s appearances at the RNC? If not, how can its use be considered “merchandising”?
The band may be covered under “Right of Publicity” laws, which are not federal laws, and vary from state to state. Whether they are (or are not) covered under those laws remains to be seen.
The RNC blurred the lines by associating the song with a candidate who is running for public office, at what is very basically a big advertisement for candidates running for office.
The RNC had every right to play the song for entertainment purposes; they had NO right at all to associate the song to their candidate without the artists’ (or copyright holder’s) prior consent. ASCAP and BMI don’t have the authority to permit the USE of the song–only the playing of it.
I would also like to add that a “rock band” is a business (that almost always starts as a “small business”), and they have as much of a right to sell their product for a profit, just as any other business does with their product(s), and without those products being used in a way other than what they were intended for. This has nothing at all to do with Heart being “greedy”, unless one considers every other business in the world that is striving for profit as being greedy.
A license to play music does not necessarily give anyone/everyone the right to USE music for any purpose that suits them, whenever and/or wherever they deem appropriate. Heart really doesn’t have anything at all to lose by having their song played–but having their song used for something other than entertainment is another thing all together.
I personally believe that McCain/Palin abused the license to play the song. I also believe that, if they continue to use the song as an association to their candidate, Heart will file a lawsuit.
Hi, RJ … please tell me more about the “association” you’re talking about here. Any Copyright Office link?
Thanks.
Her nickname was/is “Barracuda.” She’s apparently had that nickname since high school.
At the end of her RNC debut, there was a large screen on stage that said “McCain/Palin” while the song “Barracuda” by Heart was playing over the P.A. system. She was on the stage at the time, with McCain. It’s arguable I’m sure, but it appears as if they were tying the song to Palin, AKA “Sarah Barracuda”.
http://www.youtube.com/watch?v=5j3peYRt21U
Again, there is certainly a gray area here–were they simply playing the song as entertainment, or were they tying the song to the candidate?
Did the RNC have a sync license? That would allow them to syncronize the song with the images on the screen–if that is indeed what they actually did at the convention.
http://www.copyright.gov/
http://www.ascap.com/licensing/termsdefined.html
http://www.publaw.com/rightpriv.html
The GOP still plays the song at rallies, in spite of being asked not to. I’m sure it’s not the last that we’ve heard about this….
Come on uspolitics, don’t play stupid. The “association” is obvious, they RNC is trying to entwine a long developed societal awareness of ground breaking female rockers with a new product: former beauty queen Sarah Palin.
Because the RNC is using Barracuda as a theme song, not simply as incidental music, there is room to argue that this is merchandising, and obviously the Wilson sisters don’t want their hard work to be co-opted by someone they find threatening to their freedoms or livelihood.
The fact that this association could harm their careers and reputation is only one reason that I respect their right to speak out. I think they’re also motivated by a moral imperative. Can’t blame ‘em.
Hi, NYCGuy … do you have a link for me substantiating the claim about the GOP still playing the song?
Thanks.
http://www.politico.com/news/stories/0908/13383.html
There ya go. I wonder if we’ll be hearing from Miss Parton. Probably not with her show opening on Broadway this year, she can’t afford to alienate anyone.
Thanks, NYGuy —
“And even the music at campaign events now screams Girl Power, with Dolly Parton’s “Straight Talk” and Heart’s “Barracuda” mixed in with the standard country classics played at events.”
Of course, this doesn’t mean that they don’t have *permission* to play the music … only that they are doing so even though the artist isn’t happy. Maybe mixing it up with other songs takes away the “associative” power you’ve mentioned.
Hmmm … I do know an intellectual property lawyer …
Way to go Ann and Nancy! You may not be able to stop the Republicans from using your song “Barracuda” but I really appreciate your quick public statement on the matter. I have always known you guys were the coolest.