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Past complaints silence political ad soundtracks

By Anthony Mccartney

Associated Press

Published: Monday, Nov. 1 2010 8:19 a.m. MDT

LOS ANGELES — With candidates trading barbs in one of the most contentious midterm elections in recent history, one group that's remained out of the fray have been headlining musicians.

Musician versus politician has been a general feature of most election years. Bruce Springsteen famously complained about Ronald Reagan's use of "Born in the U.S.A." and artists such as John Mellencamp, Green Day and Jackson Browne have all waged public battles with campaigns using their work without authorization.

But despite record ad spending this time around, copyright attorneys who police use of their clients' work say after a busy primary season, 2010 general election campaigning was surprisingly devoid of problems. And they cite musicians' wins in previous high-profile dustups as the likely reason.

"Every time a politician gets slapped down on this, it's hugely embarrassing," said copyright attorney Howard King, whose firm has represented several artists in spats with politicians, including one in the primaries between musician Joe Walsh and an Illinois congressional candidate of the same name.

The rocker complained about candidate Walsh's campaign re-recording his song "Walk Away" with new lyrics and the dispute was eventually resolved without a lawsuit. A similar flap occurred in a U.S. Senate primary race in California when Republican candidate Chuck DeVore's campaign re-recorded a pair of Don Henley songs to lampoon President Barack Obama and House Speaker Nancy Pelosi.

Broadcast and online ads are the main areas where artists can sue, since the public use of songs is licensed by music clearinghouses. But sometimes, campaigns buy performance rights to play songs — as in the cases of Springsteen, Mellencamp and Green Day — and don't have to directly seek the permission of the musicians. So in these instances, the artists generally can't sue; they can only complain.

Other times, the artists have not allowed licensing of their music for advertising purposes, so they can sue on that basis. And in cases where music is altered and re-recorded by a campaign, copyright-infringement suits can also be filed.

Internet advertising can be especially contentious.

"They (the campaigns) see a big difference between ads on television and ads on the internet," said Lawrence Iser, a copyright attorney who has sued campaigns on behalf of Browne and former Talking Heads frontman David Byrne. He said campaigns are often staffed with "young people who grew up in a Napster world," referring to file-sharing service that sparked widespread music piracy a decade ago.

Fights over re-recorded music in ads often begin with a cease-and-desist letter and a notice to YouTube — where many of the ads reside — alleging copyright infringement. In the DeVore case, the candidate tried to argue his campaign songs didn't infringe on copyrights because they mocked Henley, a federal judge disagreed and said they were political satire, not a constitutionally protected parody of the original songs.

Iser said he was surprised that there hadn't been more instances in this year's general election of popular music ending up in political ads without permission, but said he thought high-profile cases were making campaigns think twice before using music, no matter how catchy the chorus or how much it might score political points.

"It's had the desired effect, and it's very satisfying," said Isera partner at the Los Angeles-based entertainment litigation firm, Kinsella Weitzman Iser Kump & Aldisert.

Browne's lawsuit against 2008 Republican presidential nominee John McCain over use of the song "Running on Empty" in an ad resulted in an apology from the party and a pledge to get artists' permission in the future.

Still, the 2010 primary season produced lawsuits likely to reverberate into future election years.

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