I administer music licenses as part of my job, but I am not an attorney. Many of the commenters have stated it correctly: as long as the RNC/McCain campaign paid the appropriate license fee to BMI or ASCAP, this was absolutely not a copyright violation. The only question is whether or not the Wilson sisters have the right to constrain specific performance of the song in the future.

As far as I know, this is an area of legal debate, untested by the courts. It is complicated by the fact that most major artists, including the Wilson sisters, have sold the administration of their copyrights to other entities: publishing companies, mechanical rights organizations, and performance rights organizations (BMI/ASCAP/SESAC). While an individual artist may want to constrain performance in a specific situation, that constraint is contrary to the interests of the other entities, who would probably wish to simply collect the license fees.

It also is not practical for these organizations, who administer the rights to millions of songs, to take “special requests” from artists. This could quickly get so convoluted as to be impossible to administer. A Christian artist may ask for their music to not be played in strip clubs; a vegan artist may ask for their music to be restricted from steakhouses, etc. Currently, when a venue purchases a license to perform music from BMI, ASCAP, or SESAC, they gain the right to use all songs in the catalog in a “blanket license.” There is no provision in the license to constrain particular songs from performance.

Until this is tested by the courts, there is no legal road to run on. Therefore, it is fashionable lately for artists to send these “cease and desist” letters as a press release. They have no legal weight, and are merely relying on the court of public opinion to shame the other party into discontinuing use of the song. So far, it has worked.

blueguitarbob on September 5, 2008 at 11:31 AM

It’s an ethics problem because you have lawyers sending out C&D letters that are more an act of legal terrorism than due diligence. The lawyers know the law isn’t on their side but they still send out the C& D letters.

Well… by that measure, a large portion of an intellectual property law practice could be considered “legal terrorism.” You see, intellectual property law is almost exclusively civil law; one individual/organization suing another individual/organization, without the state involved. Litigation is expensive, so threats are used to intimidate the other party into settlement. This limits the actual amount of litigation, and reduces the expense for both parties.

However, that means that IP disputes frequently go nuclear at the starting line. The “nasty lawyer letter” is the common language of the art. Everybody does it.

Myself, I was 5 for 5 in pursuing IP infringement as the COO of a small manufacturing company a decade ago. My only weapon was an attorney who could make fire and brimstone spit from his letterhead. We never once went to court, and the disputes were settled quickly in our favor each time.

That’s what you are seeing from the Wilson sisters in this case. Their “Cease and Desist” letter is just lawyerly bluster, filled with half-truths intended to confuse those not experienced with the odd twists and turns in US music publishing.

For example, the C&D letter states that the Wilson sisters were not asked for permission to use the song. To the layman, that sounds like an offense. In truth, nobody in their right mind would ask an artist for permission to use their song, because the right is almost never theirs to give. Those rights are administered by organizations that specialize in that business; for performance rights, those are BMI, ASCAP, and SESAC in the United States. Artists like the Wilson sisters gladly give up the details of rights administration, because they have other things to do.

blueguitarbob on September 5, 2008 at 7:51 PM