8:29am PT by Eriq Gardner
Rand Paul Receives Legal Threat Over Music in Ad Slamming Marco Rubio
Rand Paul got some good news this week when he was informed by Fox News that he had made the cut for Thursday night's Republican debate in Iowa, but at the same time, he's also facing a legal threat from Sean Altman, the songwriter behind "Where in the World Is Carmen Sandiego?"
For an advertisement that questions Republican rival Marco Rubio's failure to show up for Senate votes, Paul is now in danger of being hauled into court over his choice of musical accompaniment. The song was the theme song for a 1990s PBS series and has since been licensed to such shows as New Girl, Fresh off the Boat, The Today Show and Saturday Night Live.
According to a copy of a four-page letter (see below) obtained by The Hollywood Reporter, Altman and his publishing company have demanded the withdrawal of the ad from all media outlets, a promise to cease using his compositions and discussions about compensating Altman for damages. The letter was apparently sent on Jan. 19 with a seven-day deadline, meaning time is up. The ad is still up on YouTube (see below), and Altman is threatening a lawsuit asserting copyright infringement and violation of the right of publicity.
Paul's campaign hasn't yet responded to an inquiry about the matter.
Altman is being represented by Lawrence Iser at Kinsella Weitzman, the same firm which filed suit in 2008 on behalf of Jackson Browne against John McCain during the latter's presidential run. That lawsuit led to a settlement, a public apology and a pledge by the Republican National Committee to license copyrighted works in the future. Altman's attorney also represented David Byrne against former Florida governor Charlie Crist, who coincidentally, lost to Rubio in a senatorial race.
The demand letter asserts that the Paul campaign hasn't been granted a synchronization license to use the composition nor a master use license to use the sound recording. If a copyright suit gets filed, there would likely be a contention that Paul's use of "Carmen Sandiego" constitutes fair use under copyright. The letter notes a couple of instances where such arguments failed in disputes between musicians and politicians, though of course, fair use is a fact-dependent analysis.
More controversially, at least from a legal perspective, Altman is warning Paul that use of the song may rise to a violation of the Lanham Act "by strongly suggesting to the public that Mr. Altman sponsors, endorses, or is somehow associated with Senator Paul and his Campaign" as well as a violation of Altman's right of publicity" for "unauthorized use of Mr. Altman's voice in the Advertisement." (We addressed how courts might look at those claims in a post last year when Donald Trump got a warning from Neil Young.)
UPDATE: Doug Stafford, a Paul staffer, issued a statement that the campaign "responded, out of courtesy, to Mr. Altman’s request several weeks ago by removing the video from its YouTube account, and the video does not appear on any of the Campaign’s social media pages. ... At this point, it appears that the only reason this lives on is so that Mr. Altman can pursue a political agenda or so his trial lawyers can frivolously chase a windfall."
Here's the ad in question and the demand letter: