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What People are Missing About Kim Davis and “Eye of the Tiger”

September 11, 2015 ,

By now you’ve probably heard about the furor over the use of Survivor’s “Eye of the Tiger” at a rally organized by GOP candidate Mike Huckabee’s campaign in support of Kentucky clerk Kim Davis. After YouTube footage of the Davis rally showed Davis entering the stage with “Eye of the Tiger” playing loudly in the background, Survivor’s Frankie Sullivan and Jim Peterik both took to social media to protest Huckabee and Davis’ use of their song.

This should sound familiar – disputes between songwriters and the politicians who use their songs have become something of a perennial issue during campaign season – this past April saw Neil Young taking Donald Trump to task for using his song “Rockin in the Free World.” With regard to Huckabee and Davis, both Sullivan and Peterik insist they didn’t grant permission to use “Eye of the Tiger” for the Davis rally.

What most of the reports on this story have missed –  and what’s key to understanding the relationship of this dispute to copyright – is that if Huckabee’s campaign (or others holding the event) did get a license to publicly perform the song from a Performance Rights Organization (PRO) that administers it, then Sullivan and Peterik’s specific permission or endorsement is (legally, under copyright law) unnecessary.

The owner of a copyright in a musical composition can prevent anyone else from performing it in public. If a politician (or anyone else) wants to play a particular song during a public rally, they must first get a license to do so. Typically songwriters and music publishers contract with Performance Rights Organizations (PROs) such as ASCAP, BMI, and SESAC, to administer those performance licenses and collect royalties on their behalf. Once a songwriter or publisher joins a PRO, someone wishing to perform the song publicly need only get a license from the PRO. This is a fairly simple, routine process. In this case, the artist’s individual consent to the performance in question is unnecessary; the songwriters have already granted their permission via the PRO, and can’t take it back without withdrawing from the PRO.  A quick search of ASCAP’s website shows that “Eye of the Tiger” is listed as part of their repertory.

In addition, PROs are subject to a specific set of rules, called consent decrees, that control how they can issue licenses to the works in their catalog. Formed against the backdrop of monopolistic practices in music licensing, these decrees preserve public access to knowledge and culture and ensure that music licensing remains a competitive market. They do this in part by preventing the PROs from discriminating between similarly situated licensees (treating similar applicants differently). This means that the PROs cannot discriminate against unpopular viewpoints, individuals, or entities, or against less powerful venues or broadcasters, despite the individual preferences of the songwriters and publishers.

So, all Huckabee’s campaign had to do was get a license from ASCAP. The question is: did it?