September 8, 2008

Ah Ha! The Defense Is Revealed!

In previous posts, I have argued that the McCain-Palin 2008 ticket should stop using the song “Barracuda” because it is contrary to the wishes of the owners of the song. I think that analysis still holds. However, there is an additional fact which I was not aware of.

The McCain campaign has an ASCAP performance license. That changes everything. The reason it changes everything is that by distributing their song through ASCAP, the Wilson sisters have agreed to ASCAP’s licensing and royalty distribution scheme. Part of that scheme involves making ASCAP their agent for the purpose of issuing licenses to perform sound recordings of the song. ASCAP sells those licenses for all of the artists who list their songs with it en bloc. And it collects money from the performer of the song (“performer” here meaning the person or entity that plays the sound recording) each time the song is played. As a practical matter, no artist who wants to sell music to a mass audience can do so without the assistance of ASCAP or its primary competitor, BMI. And those licensing agents are only useful commercially because they sell en bloc licenses to anyone.

See, all of my analysis was predicated on the assumption that the campaign had not bothered to get a license beforehand. I based that on the behavior of the Clinton-Gore 1992 campaign, which my research showed simply played its popular music and waited to see if there was any objection. But in this case, the defense to a copyright violation claim would be “consent.” The Wilson sisters’ agent, ASCAP, consented in advance to the McCain campaign’s use of the song. That consent was conditional upon the payment of money, and at least according to the Slate article linked above, the money has been paid. Re-tooling the en bloc licensing agreement to accommodate the wishes of these particular artists may simply not be practicable, and that may also constitute a breach of contract between ASCAP and its customer, the campaign.

That’s a good defense. And it respects the property rights of the Wilson sisters. If they don’t want just anyone to come along and buy the right to use their music, they need to work out special arrangements with their licensing agent. So, upon further review, I call “no foul.”

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