Rush and Rush: Using Music in Political Activities (Redux)

News reports that Rush (the band) have demanded that Rush (the Limbaugh) desist from using the band’s music in his radio broadcasts have re-raised an issue we have considered here at the Signal on few different occasions.  The story appears to have been broken by US blogger Bob Cesca (EXCLUSIVE: Rush Pulls Music from Limbaugh Show) and Cesca also provides a copy of the “cease and desist” letter sent by Rush’s management company to The Rush Limbaugh Show.  According to Cesca, The Rush Limbaugh Show had used various Rush songs as “bumpers out of … commercial breaks” and a Rush song had been playing while Limbaugh had made various controversial statements about a woman named Sandra Fluke.

The relevant portions of the letter read as follows:

… Rush Limbaugh, Premiere Radio Networks and The Rush Limbaugh Show have been using Rush’s recorded music as part of what is essentially a political broadcast.

The use of Rush’s music in this way is an infringement of Rush’s copyrights and trademarks. The public performance of Rush’s music is not licensed for political purposes and any such use is in breach of public performance licenses and constitutes copyright infringement. There are civil and criminal remedies for copyright infringement, including statutory damages and fines.
(see sections 501-513 of Title 17 of the United States Code

In addition, the use of Rush’s music in this manner implies an endorsement of the views expressed and products advertised on the show, and is in breach of not only copyright and trademark rights, but also, of section 51 of the New York Civil Rights Law (excerpt attached).

Long-time readers of this blog will recall that Rush has appeared here before in somewhat similar circumstances: nearly two years ago Rush demanded that US politician Rand Paul stop using their music at public appearances and stop quoting lyrics in speeches (see: Signal coverage from June 2010; Ben Sheffner’s discussion of the matter; and the May 2010 cease and desist letter).

So – can Rush (the band) prevent Rush (the Limbaugh) (or any other radio show) from using its music on a radio broadcast?  (I’m going to focus on the copyright issues here, since those are of broader application, rather than the New York State-specific right of publicity claims or the trade-mark claims.)

As discussed in our earlier post (Canadian Copyright and Campaigns – Moral Rights Edition) the band might have an easier time of things trying to stop a Canadian political radio show from using their music: in Canada they (i.e., the composers of the songs in question) could try to assert their moral rights in the songs, found in Sections 14.1 and 28.2 of the Copyright Act (Canada).  Such a claim would involve arguing that Limbaugh’s use of their compositions constitutes “use in association with a product, service, cause or institution” which “prejudices” their honour or reputation”.  They might face some hurdles in demonstrating the first part of that formulation: it’s not immediately clear that what Limbaugh does on his radio show constitutes a “cause”, though one could make a relatively cogent argument that it falls within the borders of “product” or “service”.  However, Limbaugh’s show is produced and broadcast in the US, where moral rights do not apply to musical compositions.

Is there some other basis on which Rush could be asserting their infringement of copyright claim?  The letter from Rush’s lawyer states “public performance of Rush’s music is not licensed for political purposes and any such use is in breach of public performance licenses”.  Radio stations in the US obtain public performance licenses for compositions from ASCAP, BMI and SESAC.  To the best of my knowledge, none of their standard licenses (ASCAP;BMI; SESAC) include any carve-out for “political” uses.  Nor does the standard SOCAN license (on the basis that Rush is Canadian, I’m guessing that their public performance rights are granted to SOCAN, which in turn has an affiliation agreement with each of the US performing rights organizations (PROs), and Rush will have chosen to affiliate with one of them – based on Ben Sheffner’s blog, at least some of their compositions are licensed via SESAC).  It’s possible, though it would be to my knowledge a unique situation, that Rush has somehow carved out “political” uses from its grant of rights to SOCAN (and therefore the US PRO).

We should also be sure to draw a distinction between the terms of a “music publishing” agreement (which composers enter into with a music publisher such as EMI Music Publishing or Warner/Chappell) and an agreement with a PRO.  While music publishing agreements regularly contain a carve-out requiring the composer’s express permission for certain types of licenses, such as licenses for political activities, certain types of merchandise (e.g., firearms, alcohol, hygiene products, etc.), as mentioned above, it is almost unheard of for a grant of rights to a PRO to contain any similar sort of restriction.  Radio stations generally don’t obtain licenses from music publishers, they obtain licenses from PROs.

Based on the foregoing, the best copyright-based argument that Rush could make to prevent the use of its songs by Rush Limbaugh must originate somewhere other than in a violation of the PRO performing licenses.

Here’s a possible way for a band like Rush to frame their argument: while a public performance license might confer the right on a radio station to publicly perform compositions, they can’t function to confer a right on a producer to “synch” or otherwise use a composition in connection with a production created by someone who does not have a public performance license.  While a radio station’s in-house production team might be able to “shelter” under the public performance license obtained by the station, an independently-produced show, such as Limbaugh’s, argubaly needs a separate set of licenses (from the owners of the publishing rights in the composition and possibly the rights in the sound recording) in order to clear the rights in the show they produce which they then “deliver” to the radio station for broadcast.  It’s possible that The Rush Limbaugh Show might have its own ASCAP, BMI and SESAC licenses which it has obtained.  There’s also the possibility that Limbaugh relies on a “fair use” argument if the excerpts of music which he uses are sufficiently short.  But for music which is prominently featured in the broadcast, in the absence of TRLS having its own licenses in place, there may be a plausible claim of copyright infringement to be made.  Such an argument would be much stronger in a case where a radio production company produces a recorded show which it then provides to broadcasters for transmission – it might be a little tougher to make that argument where a show is broadcast live (as the Limbaugh show appears to be).

The foregoing argument is, of course, speculative – no court that I’m aware of, whether in Canada or the US, has considered a similar argument.  The consensus among US attorneys appears to be that an artist cannot legally prevent a radio show from using music if that show (or the station on which it is broadcast) has obtained the necessary PRO license (see, from Rolling Stone magazine, Can Rush, Peter Gabriel Legally Order Limbaugh to Cease Using Their Songs?).  That doesn’t mean, however, that an artist has no ability to prevent the usage: public declarations of disapproval can serve as moral suasion, inciting (or “shaming”) the makers of a radio show to drop the songs in question.  Depending on how the music is used in a particular show (e.g., if it is used as a theme song for a show, or is constantly played on the show to the extent that it becomes “identified” with the show in some manner) there might be some kind of trade-mark or right of publicity claim which could be advanced (which would be somewhat similar to the Canadian “moral rights” claim).  And claims backed by assertions of legal rights might persuade the recipient to stop the usage simply because they don’t have the time, energy or money to contest the legal claim.

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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