Infringing on political puffery

I’m fascinated by R.E.M.’s claim that it somehow has a right to ideologically police the players of its music.

The American rock band R.E.M. on Thursday demanded that Fox News “cease and desist” using their song “Losing My Religion” during its coverage of the Democratic National Convention.

“R.E.M.’s ‘Losing My Religion’ was used in the Fox News coverage of the Democratic National Convention last night,” a statement on the R.E.M. HQ website said. “R.E.M. today, through its music publisher, Warner-Tamerlane Music, demanded that Fox News cease and desist from continuing its unlicensed and unauthorized use of the song.”

“We have little or no respect for their puff adder brand of reportage,” lead singer Michael Stipe said. “Our music does not belong there.”

Hey wait a minute! Why bash the lowly puff adder? Bitis arietans is a beautiful example of evolution (and even those who disagree with evolution would have to acknowledge that the little beastie is one of God’s creatures), and being models of sustainability, they do not waste energy!

http://www.youtube.com/watch?v=DNHx5GI1KQE

Lying in wait works.

http://www.youtube.com/watch?v=6QKBG146dsI

Not quite sure what Stipe means about “puff adder reporting.” Does he mean that Fox sits around lying in wait for its victims to stumble in, only to suddenly lunge out of nowhere to strike and then POOF! the victim is dead?

As to whether ideology can be a factor in determining whether there is a right to play music, this issue has come up many times, usually when musicians get upset when they learn that politicians they dislike are playing their music at political events.

The problem is that copyright laws were designed to ensure that artists get paid for the use of their material, not to enforce ideological litmus tests. So legally, this is a very murky area. R.E.M. might not like it, but licensing rights are about money.

Copyright experts say you don’t have to ask an artist’s permission to play a popular song at your rallies — as long as the venue where you play it has what’s known as a blanket license from the performing rights organizations ASCAP and BMI. Peter DiCola, who teaches law at Northwestern, says most public venues do have those licenses. But small or unconventional venues may not, including a few that are mentioned by name in the Survivor lawsuit.

In this case, R.E.M. may have no legal right at all to stop their song from being played. Even if they could stop Romney from playing it at unlicensed events, Fox News is another matter entirely. It is a subsidiary of News Corporation, which also owns 20th Century Fox. And the song in question is on two albums released by Warner Brothers Records, a subsidiary of the Warner Music Group, which is owned by a private company named Access Industries, in turn owned by a billionaire named Len Blavatnik. You can be sure that all of these big guys hold blanket licenses entitling them to play whatever copyrighted music they want at any time. Once their music has been released into the normal networks of distribution by an outfit like Warner, the individual authors and musicians lose the individual right to decide which of the licensed entities may or may not play it. The marketplace in music is there to ensure simply that musicians get paid for their product — something R.E.M. surely realized when they signed the $80 million deal with Warner.

I’m fascinated with the concept of artists deciding who gets to use their art, though. The holders of the supposedly “copyrighted” Che Guevara image claim — wrongly in my opinion — that only those who agree with it are allowed to use it. Guevara aside, ideological licensing mixes apples and oranges and could be very disruptive to the market. Imagine if a classical violinist in an orchestra decided that no network he disliked should be allowed to play a particular recording of Beethoven’s Fifth in which he performed. Their rights are subordinated to the record companies and ASCAP, and all that matters is whether they are paid.

Should this be changed? It seems to me that if you’re satisfying whatever the licensing requirements are, what you might think about politics is irrelevant. And what about fair comment? Now that R.E.M. is trying to demand political conformity to its ideology as a condition of playing its music, I think it is entirely legitimate to play it by way of thumbing the nose at R.E.M. as a form of protest.

And why not?

http://www.youtube.com/watch?v=if-UzXIQ5vw

The music isn’t bad, but I think puff adders have more integrity.

(I do think “poof adders” would be a great name for a musical group, but like anything else that can be thought of, someone else has already thought of it. But at least the puff adders can’t claim infringement…)