August 16, 2012 10:57am PT by Eriq Gardner
Lawyer Letter to Mitt Romney Over Inappropriate Song Use May Have Been Plagiarized
On Wednesday, Mitt Romney was served with a cease-and-desist letter from a band called Silversun Pickups for using their big hit "Panic Switch" at campaign rallies.
For those who have followed the many disputes over the years between musicians and Republican politicians, the demand was familiar. Romney has battled such musicians as K’naan and Al Green over use of songs. Before that, Newt Gingrich was hit with a lawsuit from Survivor guitarist Frankie Sullivan. Before that, Michele Bachmann received an unpleasant letter from Tom Petty. And on and on...
But just how close are the notes of discord being strummed? Let's take a look at the particular cease-and-desist letter that was sent out by Silversun Pickups on Wednesday and compare it to one sent more than two years ago on behalf of Eagles guitarist Joe Walsh against then-Republican congressional candidate Joe Walsh (yes, of the same name).
The Silversun cease-and-desist letter appears to be penned by Tamara Milagros-Butler, an associate at Myman Greenspan, a top entertainment law firm in Hollywood. Milagros-Butler alludes to the irony of a politician's trouble with the law:
"As the former governor the state of Massachusetts, a graduate of Harvard Law School, and candidate for U.S. President, we're pretty sure you are familiar with the laws of this great country of ours. We're writing because, like you, we think these laws are important."
Now compare this to the post-introduction graph written by Peter Paterno at LA's King Holmes firm who represented Walsh when the same-named politician attempted to rewrite "Walk Away" to become "Lead the Way":
"As a candidate for Congress, you probably have a passing familiarity with many of the laws of this great country of ours. It's possible, though, that laws governing intellectual property are a little too arcane and insufficiently populist for you to really have spent much time on. We're writing because we think these laws are important..."
Next comes the introduction of copyright law. Here's what Milagros-Butler tells Romney:
"First, there's the United States Copyright Act. It says that you can't use someone else's song for your campaign promotions unless you get permission from the owner of the copyright in the song."
And while there are probably not infinite ways to lecture someone about the law, here's the similarly didactic way that Paterno told Walsh about copyright:
"First, there's the United States Copyright Act. It says a lot of things, but one of the things it says is that you can't use someone else's song for your political campaign promotions unless you get permission from the owner of the copyright in the song."
Copyright is just one tool for musicians to complain about exploited music. Both letters then discuss trademark rights as a way to "protect the public from being confused as to the source of goods or services or as to whether someone endorses particular goods or services."
Some might say, OK fine, what's the big deal? In briefs and judicial opinions, precedent is often cited (although usually with quotation marks). So the most interesting part of the Silversun letter is what comes next.
Romney's campaign has already responded to the cease-and-desist, citing the fact that the song "was covered under the campaign’s regular blanket license." That seems like an obvious defense given it's the same argument being offered by Gingrich in defending the lawsuit by Sullivan. It's one that any diligent attorney would be prepared to counter.
But in Milagros-Butler's letter, she doesn't make this argument. Instead, she says:
"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 that none of those buzzwords (or the law they represent) works for you here. In fact, don't take it from us. Check with your own Republican National Committee. They can confirm this for you. During Senator John McCain's 2008 presidential campaign, Mr. McCain used Jackson Browne's song 'Running on Empty' without permission. Jackson Browne sued Senator McCain. As a result, the Ohio Republican Party and the RNC apologized for misusing the song."
And now compare that to the Walsh letter:
"I'm sure that when you take this letter to a lawyer with a passing knowledge of copyright and trademark law, he'll give you some good lawyer words to put in a letter back to us -- things like 'First Amendment,' 'fair use,' 'parody' and 'so's your old man.'...I can promise you that none of those buzzwords (or the law that they represent) works for you here. In fact, if you check with your own Republican National Committee (the "RNC"), they can confirm this for you. You may recall that, during his 2008 campaign, Senator John McCain used Jackson Browne's song 'Running on Empty' without permission. A lawsuit ensued, following which Senator McCain, the Ohio Republican Party and the RNC apologized for misusing the song."
Pretty similar, right?
Milagros-Butler herself acknowledges the situation and says that her boss raised the issue with her last night after the letter came out.
"When I needed to write a cease and desist letter, I did what almost any contract lawyer does many times day and I looked at historic forms," she says. "I simply loved the tone of this language (in the Walsh letter). And geez, I looked back when my boss raised the issue and ran a red-line comparison. While the language isn't precisely the same, I borrowed liberally from Peter's letter."
Some think it's brazen for a writer to lift several paragraphs from a tiny publication like The New Yorker and hope nobody would notice, as suspended columnist and TV host Fareed Zakaria recently did. But what about someone who is accusing one of the nation's most prominent figures of theft. Doesn't that situation beg for some originality as well as diligence about what's uniquely at issue?
Asked whether she regrets what she did, Milagros-Butler says "I regret not looking back or thinking more. I regret not thinking more backwards to see if it was our letter or someone else's. If I thought about it more, I would have realized that we didn't represent Joe Walsh."
Email: firstname.lastname@example.org; Twitter: @eriqgardner