Jackson Browne and Copyright

Jackson Browne's decision to sue the McCain campaign over the use of one of his songs in a TV ad in Ohio raises serious "fair use" issues. Why can authors (such as myself) lift whole paragraphs from copyrighted works by way of citation, but we can't lift portions of songs for use in audiovisual creations? What is so special about audiovisual media?
Written by John Carroll, Contributor

This is old news for those who follow the legal machinations of musicians, but I didn't know about it until I saw Jackson Browne appear on "The Colbert Report" on Monday (no, I don't get ALL my news from Colbert, just the stuff related to musicians who sue people). Jackson Browne, apparently, is suing John McCain and the GOP over the use of the song "Running on Empty" by the Ohio Republican Party in a television advertisement. This follows a number of high-profile demands from other musicians, such as Van Halen and Heart, to prevent McCain from playing their songs at campaign rallies.

Now, just to put this in context, I can't see any possible way I can vote for a McCain / Palin ticket. In other words, I am currently an Obama supporter. Based on recent trends in American political discourse, I'm supposed to absolutely DESPISE the opposing ticket, rejoicing at any and all humiliation which can be heaped on the candidate for whom I do not plan to vote.

I, however, HATE that aspect of American politics. Our tendency to turn the opposing side in political differences of opinion into demon-possessed caricatures demeans the political process in this country, though it is likely a result of the difficulties associated with running a campaign in a country as large as the United States. Elections are particularly expensive in the US. This provides ample opportunity for special interests to corrupt the process by helping to fund national campaigns, but it also creates incentives for parties to create simple stereotypes by which to characterize the opposition. Simple stereotypes travel well in the few seconds candidates have to communicate with the public through television advertisements, a medium which serves as the most important means by which candidates get their "message" out and which, consequently, is often the biggest expense of a national presidential campaign (which in my humble opinion should be banned; TV ads are like eating styrofoam, as they serve no informative purpose even as they make campaigns insanely expensive).

But the point of this post wasn't to write a tirade about the flaws of the American electoral process. The problem I have is with the different standard by which we judge "fair use" between the printed word and audiovisual media.

When I write a blog post, I regularly will lift whole paragraphs from an article I have found elsewhere. I may borrow passages from articles with which I agree as a way enhance my own argument, or I might use it as part of an attack on the conclusions made by the article from which I lifted passages. Frankly, my intentions don't matter. I have a right to lift passages from copyrighted works to my hearts content, just so long as I don't go and copy the ENTIRE work.

Such a "fair use" exception simply does not exist in the world of audiovisual media. Prince famously sued YouTube over a family video that included part of a Prince song as background music. Movies have to be careful to get permission to use the brand marks which might accidentally appear in a film, as there is the risk that the owner of the brand will sue the movie if they don't like the content or tone of the film. A low-budget film I worked on in Ireland would never achieve a wide release (assuming anyone would want to see it), because in a few scenes, we included clips from a movie that was almost 50 years old.

Never mind for the moment the fact that copyright protections have been extended to unreasonable lengths (the Sonny Bono Copyright Term Extension Act extends the life of copyright to the life of the author plus 70 years, with equally perplexing timescales for works created under "corporate authorship," such as most movies). For some reason, a double standard has been created that separates printed media from audiovisual media.

The string of musicians who deny candidates the right to use their songs at campaign rallies are just being petty, in my opinion. But, I think a strong case can be made that sampling a short snippet of a song for use in another work SHOULD be permissible. It's worth noting that "Running on Empty" (the album from which the offending song was lifted) was released over 30 years ago, which by older notions of what was considered a "reasonable" copyright term, would mean it would now exist in the public domain.

To be fair, however, Jackson Browne's situation does have some shades of gray. Playing music at public events should be covered by fair use, and I think that includes campaign rallies. On the other hand, Metallica might not want "For Whom the Bell Tolls" to be used in a commercial for baby diapers (baby has no hair, but he really likes to headbang). 

It's quite normal for musicians to make money by allowing profit-oriented companies to use their songs in ad campaigns. One of the songs Van Halen told McCain to stop using at rallies was previously licensed for the "Crystal Pepsi" ad campaign, a now defunct product that proved once and for all that the chemical fizzy water we like to pour into ourselves can be stained any damn color we want.

I imagine the difficulties associated with defining the proper boundaries of intellectual property has made it harder to oppose efforts to extend copyright terms over the years. The issue doesn't reduce itself to easily consumable soundbites.

Personally, I think Mr. Browne should cease engaging in the petty negativity that now surrounds both campaigns, a process to which his lawsuit clearly contributes (I think it would have been enough to serve notice and say "don't do it again...or else"). But, I'm at a loss to define a firm dividing line between proper use of a song in a third-party work and copyright infringement.

What do you think?

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