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As more musicians including Twister Sister frontman Dee Snider and Los Angeles rock band Silversun Pickups continue to object to Republican candidates using their songs in campaign rallies, no legal clarity on the subject is forthcoming.
That’s because in the only ongoing lawsuit over whether an ASCAP blanket license covers the use of music on the campaign trail — a dispute between Survivor member Frankie Sullivan and former Republican presidential candidate Newt Gingrich over the use of the Rocky III hit song “Eye of the Tiger” — the parties have informed an Illinois federal court that they are completing documentation of a settlement.
The development highlights the fact that political events often occur quicker than slow-moving courtroom dramas. Even a pugnacious politician like Gingrich, after getting out of the race for president, decided to hang up his gloves rather than attempt to score any points in the ongoing battle between musicians and Republicans over the exploitation of songs in campaigns.
Sullivan sued Gingrich in January for using his co-written Grammy-winning song as entrance music at various conferences and campaign rallies.
In March and April, when Gingrich’s campaign still had some life, the Republican fought back with tough-talking motions in court. Gingrich questioned the jurisdiction, brought up the statute of limitations, pointed to the First Amendment, nodded to the song’s other co-writer who stated he was “not on board” the lawsuit, and most importantly, spoke about the blanket license he had gotten from ASCAP that purportedly covered public performance uses associated with political campaigns.
But no matter the merits of his argument, Gingrich’s potential settlement shows why musicians have the upper hand.
In the past few years, artists including Jackson Browne, Jon Bon Jovi, Heart, the Foo Fighters, Van Halen, John Mellencamp, Tom Petty and K’naan have registered displeasure with Republicans using music.
Most of the battles have ended with the politician bowing down quickly after receiving a cease-and-desist warning. And the few who have gone into court have not challenged far. Only a dispute involving California senatorial candidate Chuck DeVore’s satirical use of two Don Henley songs made it to a pre-trial summary judgment in a lower district court. Then, without any trial over damages or appellate review, the case was settled.
The Gingrich dispute was somewhat different than those cases involving John McCain and Chuck DeVore. This one dealt with music over loudspeakers, not in campaign advertisements. Although Gingrich argued his ASCAP license covered the use of “Eye of the Tiger,” much uncertainty exists as to whether that defense would withstand a Lanham Act claim for confusing fans into believing the artist has officially or tacitly endorsed the candidate.
Regardless, it takes money for legal bills to find out for sure. Standing on principal has been measured as too costly, say some lawyers who have represented politicians.
No word on the terms of the settlement yet and whether Gingrich might have to make an embarrassing YouTube apology such as the one that Charlie Crist made after getting out of the Florida senatorial race and settling a lawsuit from Talking Heads frontman David Byrne over the use of “Road to Nowhere.”
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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