The First Amendment is not a Buzzword: The Silversun Pickups and the Romney Campaign

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Yet again, a band is objecting to the use of its music by a political campaign it doesn’t like. The Silversun Pickups, upon learning that their song “Panic Switch” was used at a Romney campaign event, sent a cease-and-desist letter to the campaign, claiming that the use infringed the band's copyrights and trademarks.

For its part, the Romney campaign said it had blanket licenses from ASCAP and BMI that covered its use of the song, and that, in any event, they played it inadvertently and would not do so again.

Phrased like that, it sounds like a pretty tame story. Use of a work, dispute over legality of use, but the matter is settled without any litigation, and everyone is satisfied. Polite applause all around.

Except two things about this exchange left me uncomfortable. First of all, if the campaign did in fact have a license to use the work, the cease-and-desist was totally off base. A blanket license not only means that the band did provide permission, but that it got paid, at least in theory, for doing so. (Whether a campaign wants to use music by a band that despises it, or a track referring to panic, is another question entirely.) A political campaign doesn’t want to get dragged into a side dispute that could reflect badly on it, so it’s likely to cave, even if it is in the legal right. The same is just as true for a user who is uncertain of the law or doesn’t have a legal defense fund to push back against an overzealous cease-and-desist.

Secondly, there’s some of the language in the cease-and-desist letter itself.

We anticipate that you, or your general counsel, may respond to this letter with a letter of your own using all those neat lawyerly words like “First Amendment,” “fair use” and “parody.” Please know that none of those buzzwords (or the law they represent) works for you here.

A couple of things here. One, the Romney campaign didn't raise those issues, because they claim permission from the blanket license anyway. Two, since when is the First Amendment (not to mention fair use, which serves to safeguard the First Amendment within copyright law) a "buzzword"?

This might just seem like saber-rattling overstatement, with a little bit of satirical bite thrown in, but this kind of thing has effects beyond establishing a bold opening position before potential litigation. When disputes are public like this, it’s not just a matter of two sides jockeying as hard as they can for possible starting points for litigation or negotiation—it skews the public perceptions of how copyright law interacts with the freedom of speech.

Labels and publishers will often deny, and artists often overlook, exactly what copyright enforcement entails. It is a restriction on speech. Sometimes this concern gets pooh-poohed, since the user of the work is using some "other people's speech." And in the case of simply making a copy or a straight-up public performance, that usually is the case. But that's a far cry from saying that the First Amendment doesn't work in copyright cases. Whether the alleged use is a political statement or not, whether it is a parody or not, the decision for someone to express themselves—whether quoting a news article, an opponent, or the lyrics of a Pokemon song, it is the speech of the person who chooses to make that statement, and the considerations of free speech and the First Amendment need to be taken into account. This needs to happen any time someone proposes a legal restriction on speech, whether through the laws of defamation, obscenity, rights of publicity, trademark, or copyright.

Just because copyright law is relevant in a particular instance doesn't mean that we disregard free speech. We can't make the mistake of thinking that copyright law provides us with a First Amendment-free zone, or that the basic ideals underpinning our laws are conditional, pro forma, or mere buzzwords.

UPDATE: The folksy, overasserted copyright claims seemed remarkably familiar to The Hollywood Reporter—looks like bits were inspired by a similar letter sent by Eagles guitarist Joe Walsh to then-congressional candidate Joe Walsh (no apparent relation).

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