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Copyrights Meet Politics: Joe Walsh (Rockstar) v. Joe Walsh (Republican)

Joe Walsh, Republican Candidate for Congress, 8th District IL

Anyone who has spent any time at a political rally or watching video from such a rally on the evening news understands that music and politics go together.  Sometimes they mix well, for example when Bruce Springsteen is playing live for INSERT LIBERAL DEMOCRAT HERE, and sometimes they do not mix very well, almost like oil and water, for example when INSERT REPUBLICAN HERE uses music.  Yes, what I just said was over broad, but not by much.  If you take away certain country music stars who aren’t afraid to be blackballed and are willing to stand up for what they believe, you are left with a statement that is hardly over broad and probably far more descriptive.

My purpose for writing this is not to inflame, although there will likely be some “tolerant” liberals who object vehemently to my voicing such an observation.  Instead, the point is to set the table between what could become an incredibly interesting battle over copyright law and parody.  Joe Walsh (the Rockstar), known perhaps most for his days with the Eagles, is rattling the saber through his attorney, who seems to know little or nothing about copyright law, and is directing his ire at Joe Walsh (the Republican) who is a candidate for Congress in the 8th Congressional District of Illinois.

This battle started on Tuesday, January 26, 2010, when Joe Walsh (the Republican) posted a YouTube video of a song performed by Joe Cantafio, the lead singer of the 101st Rock Division. The song performed by Cantafio was titled “Lead The Way” and was a “version” of “Walk Away,” a song by Joe Walsh (the Rockstar). Joe Walsh (the Rockstar) has apparently lodged a copyright violation with YouTube and the video has been taken down, so it is difficult to say really whether the song is a parody as that term is used in Copyright law and by the United States Supreme Court, but from what I can see it seems there is a reasonable chance that is was a parody. Pollstar.com has some information about the lyrics, which were changed at least in part.  Whether the song would be a parody and entitled to fair use, or a satire and potentially not entitled to fair use, is impossible to know without careful consideration of the song in its entirety.  And even if it were a satire (i.e., a remake version used to criticize something other than the original song) that wouldn’t mean as a matter of fact or law that it couldn’t be entitled to fair use protections anyway, it would just mean that the seminal Supreme Court case might not be directly on point.

Regardless of whether the song is parody, satire and/or a fair use, what I do know with 100% certainty is that the lawyer who hired by Joe Walsh (the Rockstar) doesn’t understand much about Copyright law, as evidenced by the incorrect statements of law contained in the cease and desist letter sent to Joe Walsh (the Republican).

The cease and desist letter sent to Joe Walsh (the Republican) apparently was published in the Waukegan News Sun prior to Joe Walsh (the Republican) ever receiving a copy of the letter. To me that smacks of unseemly posturing and grandstanding, perhaps suggesting that the entire cease and desist stunt was more an attempt to politically damage Joe Walsh (the Republican). If that is true I suspect it will have backfired in the end. Regardless, this cease and desist stunt will definitely give Joe Walsh (the Republican) more visibility and more appeal. He has a legitimate argument based on well established Copyright laws and Joe Walsh (the Rockstar) looking like he is beating up on him will likely just further demonstrate the political divide between Hollywood and many Republicans and Conservatives who have the audacity to have an opinion not in alignment with the so-called entertainment elite. Imagine that!

In any event, what exactly demonstrates that Attorney Peter T. Paterno, of King, Holmes, Paterno & Berliner, LLP, doesn’t know much about copyright law? Well, read this, straight from his rather obnoxious cease and desist letter:

[U]nder that same United States Copyright Act, you’re not allowed to take someone’s song and change the lyrics. This is not to say you’re not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe’s music — it’s undoubtedly because it’s a lot better than any music you or your staff could have written. But that’s the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes.

Now lets take these erroneous statements of the law from this single paragraph of the letter one at a time, shall we?

First, Attorney Paterno is obviously not at all familiar with fair use and probably isn’t familiar with the United States Supreme Court, or their decision in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), where the 2 Live Crew parody of Roy Orbison’s song “Oh, Pretty Woman” was at issue. Any law student who has taken a basic Copyright Law class would know that copyright fair use and parody protections do, in fact, allow artists to take music and change the lyrics to their own. Kinda makes you wonder what Attorney Paterno was thinking, or if he was thinking or just chest pounding.

Second, the Copyright Act does not give Joe Walsh (the Rockstar) the right to decide who gets to use the songs he writes. In fact, there are a tremendous number of fair uses that Joe Walsh (the Rockstar) or any other copyright owner for that matter, could never prevent. There are fair use rights to use music and lyrics for teaching purposes, there are well established rights for anyone to do cover versions of any songs, and then there are those pesky parody rights already mentioned. So, Attorney Paterno has once again well overstated his case, which is not at all surprising in a cease and desist letter unfortunately.

This ill informed paragraph aside, perhaps the most illuminating (and disgusting) thing that Attorney Paterno said in his cease and desist letter was:

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.” Having dealt with situations like this in the past, we know that the first refuge of political scoundrels is the First Amendment. Just know that this is an area in which I’ve practiced my entire career and I can promise you that none of those buzzwords (or the law they represent) works for you here.

So the First Amendment is refuge for scoundrels? Really? How interesting. Well let me say loud and clear — the First Amendment is one of the most precious rights we have and there is no room for ignorance or arrogance when it comes to restricting the First Amendment.  It is naive and condescending all at the same time to suggest the First Amendment is for scoundrels.  Yet this sadly seems to be the view of many, particularly those in the liberal fringe, who are “tolerant” and supportive of First Amendment rights only so long as they agree with the message. That is disgusting and there is no room for such hypocrisy in political debate, daily life or in the law, PERIOD.

Let me say something else as loudly and clearly as I can. I am not one with “passing knowledge of copyright and trademark law,” but rather I am one who knows a heck of a lot about the topic. To the extent I can be of any assistance to Joe Walsh (the Republican) I will. Bogus, puffing, arrogant and condescending cease and desist letters are, in my opinion, the scourge of intellectual property practice. I am glad to see that Joe Walsh (the Republican) is not backing down (see The Candidate Defends the Tea Party Movement), and I hope he continues to stick to his principles and doesn’t let himself get bullied by someone who is more interested in grandstanding than resolving a matter for his client.

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9 comments so far.

  • [Avatar for pop]
    pop
    February 6, 2010 09:20 pm

    I agree with you completely. Copyright isn’t as mysterious and controversial as patents are. I took the time to read the copyright law once and I seem to know better than this lawyer. It’s almost like this guy has never even heard of fair use. Look at the daily show, fair use is the only thing keeping that show running.

    “Now, I know why you used Joe’s music — it’s undoubtedly because it’s a lot better than any music you or your staff could have written. ”

    There isn’t any reason to throw insults around in a cease and desist order! What an asshole.

    On a side note, I actually really like Joe Walsh (Rockstar). Not only do I love the Eagles, but he is also from Wichita, KS, which is right near where I grew up.

  • [Avatar for Mike]
    Mike
    February 8, 2010 10:16 am

    What about TED NUGENT? He has his own right-of-right philosophies and is frequently used by a variety of right wing politicians.

    You’d think that if a politician for a public office were going to use a song as backdrop for a campaign they would simply ask permission to use the song prior to use. This ‘mistake’ should not be occuring in today’s copyright saavy society. It is simply a ploy by politicians to either at least use the artists work for free or at worst create a ‘buzz’ around their campaign.

    What ever happened to the middle ground? We’ve had 12 yrs of this my-side/your-side antics and nothing has gotten done. Politicians get a life-long paycheck and insurance for just 1 term in office. They have no incentive to improve the system and continue to dicker about playground games while we pay their salaries to get absolutely NOTHING done. It’s easy to analyze problems/solutions and make informed decisions about costs, benefit, and outcome. Tell Washington to quit complaining, get up and make some good sustainable decisions.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 8, 2010 12:55 pm

    Mike-

    I would agree with you regarding using music as a backdrop, but that wasn’t what happened here. Joe Walsh (the Republican) took a Joe Walsh (Rockstar) song and changed it around and put new lyrics to the song. Whether that is legal or not, the letter from Rockstar’s attorney gets the law wrong and makes bold statements that are without legal support.

    I also agree that DC should make some good, sustainable decisions. That would be change to believe in!

    -Gene

  • [Avatar for Mike]
    Mike
    February 8, 2010 02:04 pm

    But Joe Walsh (republican) is clearly playing off of the image and music developed by Joe Walsh (ROCKER). Wierd Al does the same thing, and works with the musicians, developing both an income for Wierd Al and credit for the original artist. Here Joe Walsh (republican) wanted to use anothers work, he could have checked with Joe Walsh (ROCKER) first, saved himself a lot of time and headache. Whether or not Joe Walsh (ROCKER) has a claim, wouldn’t it have just been easier to get permission first, or at least see what the ROCKER’s reaction would be first?

    There is a fine line we walk with copyrights, where protection for the owner is contrasted with fair use. Some cases clearly favor parody (no time for citations now), some clearly prevent other uses even if funny (no time for citations now), and some cases clearly fall in the gray area between protection and fair use (no time for citations). This I would say is not clear cut because it implies the ROCKER supports the Republican, who is not just making a parody, but using the song to promote his political activities. His use of a Joe Walsh song was also not random, but instead plays on the fame of the ROCKER.

    Here’s an ABA summary of the issue (circa 2005)

  • [Avatar for Mike]
    Mike
    February 8, 2010 02:05 pm

    ABA link must’ve been cut off…
    http://www.abanet.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

  • [Avatar for broje]
    broje
    February 10, 2010 02:52 pm

    Any word on how many bars of music they used? I recall from copyright law class that 4 bars is the limit on fair use, even if it is used for parody, or education or whatever. Also, did the person singing the new lyrics sound enough like Joe Walsh (the musician) for anyone to be confused that he was singing it, and if so, was there a notice that the vocals were a celebrity impersonation? If not, depending on the laws of the state in question, there may be a right of personality claim. This has not been legal advice. I’m just asking for more facts please.

  • [Avatar for Jim]
    Jim
    February 26, 2010 12:32 pm

    You say “Any law student who has taken a basic Copyright Law class would know that copyright fair use and parody protections do, in fact, allow artists to take music and change the lyrics to their own.” citing Cambell in support. But Campbell certainly doesn’t say that. In fact, the Campbell decision made a big point of the fact that 2 Live Crew essentially only used the opening lyrics and opening bass line from Roy’s song. The rest of their song departed markedly from Roy’s song.

    Here, while you and I have not heard the song as used by JW (the Republican), attorney Paterno apparently has and it certainly the implication in his letter that JW (the Republican) used the entirety of the music to Walk Away in his song. If that is indeed the case, then Paterno is right and your reliance on Cambell to show Paterno is wrong is entirely misplaced.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 26, 2010 12:59 pm

    Jim-

    We are going to have to agree to disagree. 2 Live Crew took the opening bass and repeated. The law in this area clearly allows the taking of enough to conjure up the image of that which is being parodied. I really don’t understand your objection to what I said because it is clear as a result of Campbell that you can “take music and change the lyrics…” That is exactly what 2 Live Crew did, and many other parodies.

    The fact that we cannot do an analysis because the song is not available doesn’t suggest that this obnoxious cease and desist letter is accurate. You seem to be using a clearly obnoxious, over bearing and grandiose letter that has a lot of statements that are over broad and not true as evidence that what Walsh (the Republican) did was inappropriate. You simply cannot do that. Cease and desist letters are a dime a dozen and are almost always written over broad with outright incorrect statements of law in them. So giving any credence to a cease and desist letter is what is misplaced.

    So while you have not heard the song you are sure enough that I am misplaced and Paterno’s obnoxious letter is correct. Seems to me like you have an agenda.

    -Gene

  • [Avatar for Jim]
    Jim
    February 26, 2010 01:11 pm

    An agenda? For what? I don’t know either JW, I don’t know you, and I don’t live in Illinois. Nor am I anything resembling a political junkie. I came across your website because I did a google news search for Paterno and Joe Walsh to see if anything had happened since JW (the Republican) posted his response letter. I did that because I found the Paterno letter to be a light-hearted, humorous letter in the otherwise drab world of legal writing. If anything, my agenda is I prefer plain english to legalese when it comes to legal writing and that “agenda” led me to have a passing interest in this matter, which led me to your website. Nobody is out to get you or whatever agenda you’re pushing. In fact, I have no idea what your agenda might be – this is the sole portion of your website that I’ve seen. I hope you take the following as the lighthearted humor it is meant to be – take off the tinfoil hat man!. 😉

    You say I am “sure enough” that you are misplaced. Read again what I said. I said “If that is indeed the case, then Paterno is right and your reliance on Campbell… is entirely misplaced.” I’m not sure of anything because, as I noted, I’ve not heard the song. You understand what the qualifier “if that is indeed the case” meant, right?