Dickinson, Mackaman, Tyler & Hagen, P.C.

Alleged copyright infringement and Newt Gingrich: What's all the fuss?

Alleged copyright infringement and Newt Gingrich: What's all the fuss?

Posted on 02/01/2012 at 02:23 PM by The Newsroom

What’s all the fuss about Newt Gingrich and alleged copyright infringement?  Rude Music, Inc. is suing Republican presidential candidate Newt Gingrich for using the Grammy-winning song  “Eye of the Tiger” – widely known as the anthem for the movie Rocky III – at events dating back to 2009.  A copyright infringement action was filed on Monday, January 30, 2012, in the Northern District of Illinois, alleging Mr. Gingrich has played a recording of “Eye of the Tiger” at numerous political events without license and authorization. This is not a new issue to campaigning politicians.  Some notable publicity occurred after Sarah Palin’s speech at the 2008 Republican National Convention when the John McCain Campaign cued Heart’s 1977 hit “Barracuda” in an apparent reference to a nickname Palin earned while playing high school basketball.  McCain himself was also criticized by Foo Fighters for his use of its song “My Hero” on the campaign trail. In the current Gingrich matter, the issue that will be argued is the basis on which the song’s copyright owner can restrict Gingrich’s use.  In the case of a song, there are at least three separate copyrighted works: (1) the musical composition, (2) the lyrics, and (3) the sound recording.  Under copyright law, therefore, the copyright owner of a song has several exclusive rights associated with that work, including the exclusive right to reproduce the work (essentially preventing others from making unauthorized copies) and the right  - implicated in the Gingrich matter  - to publicly perform the copyrighted work (essentially preventing others from the public performance of the work).  There is no question that the playing of “Eye of the Tiger” by the Gingrich campaign is a public performance; however, the question is whether the playing of “Eye of the Tiger” is for political or economic reasons.  Copyright law protects economic interests.  Generally, music artists are represented by large record labels, who participate in complex licensing agreements that allow anyone to use a song for a given purpose as long as a license fee is paid.  This fee generally is for the use of one or more songs in a public performance. One can argue that the public performance of “Eye of the Tiger” by the Gingrich campaign was not for economic interest, but as a form of political speech and falls under the “fair use” doctrine.  Because the use of a song in a political campaign doesn’t change the market value of the song (nobody is going to listen to the song at a campaign event instead of buying it), the use of the song is arguably not for economic interest and, therefore, does not constitute copyright infringement.  Additionally, the courts are hesitant to enjoin political speech unless there is a very good reason.  We'll wait and see what happens in this case – will the "fair use" doctrine prevail, or will Gingrich succumb to the criticism or legal action and stop using "Eye of the Tiger" in his campaign?
© 2016 Dickinson Mackaman Tyler & Hagen, PC