Double, Double, Newt’s In Trouble.

With the Republican primaries approaching an end, I am sure a few candidates and their advisors have been thinking of ways to motivate voters. The power of music has long been recognized to move people and stir emotions. So if Orpheus could convince Hades to free his beloved Eurydice from the underworld, surely “Eye of The Tiger” could at least have some sway on voters.  Unlike Newt Gingrich however, Orpheus was not living in a world of copyright law.

On January 30, 2012, the copyright owners of the “Eye of The Tiger,” Rude Music Inc., filed suit against Newt Gingrich and his campaign over alleged copyright infringement of the song. It is claimed that the defendant’s publicly performed the musical work, without consent of the copyright owners, by performing the work at numerous campaign related events across the country. In addition, the plaintiff’s allege that the co-defendant, the American Conservative Union, unlawfully reproduced and distributed their work by posting a video on the Internet, which contained the copyrighted work. Click here for an example of the alleged infringement.

When a work, such as a song, is fixed in a tangible medium of expression, copyright subsists in the work. For the copyright owner, this means that a bundle of separable sticks is granted. Those exclusive sticks, or rights, are the rights to 1) reproduce the work, 2) prepare derivative works, 3) distribute copies of the work, 4) to publicly perform the work, 5) to publicly display the work, and in the case of sound recordings, 6) to perform the sound recording publicly (see 17 U.S.C. §106).

It is worth explaining at this time the difference between the copyright in a musical work and the copyright in a sound recording.  To use an illustration, if I record a new musical work, I have created two separate works for purposes of copyright law. One is the musical work, the actual melody, rhythms, chords, etc. Then, by recording the musical work, I have created a separate work, the sound recording, which is a separate copyright from the musical work. So through one act, recording the musical work, I have met the fixation requirement stated above for copyright to subsist in the works. To continue the illustration, if someone were to make their own version of my music, then only the copyright in the musical work has been infringed. But, if someone were to publicly play my recording, then the copyright in both works has been infringed because I have separate rights to publicly perform each work.

While the complaint does say that the suit arises from “defendants’ unauthorized public performances and distribution of Rude Music’s copyrighted musical composition,” (see ¶1) they also state that the “recording of “Eye of The Tiger” was played” at campaign events (see ¶10) [emphasis added].   The plaintiffs are alluding to the fact that the copyrights in both the musical composition and sound recording have been infringed. The plaintiff likely does not own the rights to the sound recording, which would explain why the infringement of the song recording is not pleaded with specificity.

Since it has only been a few days since the complaint was filed, the defendants, of course, have not filed their response. But apparently it is common for political campaigns to obtain blanket licenses from performing arts societies such as ASCAP. However, even if a blanket license was obtained, that would only be a defense to the claim of infringement of the public performance right, not the claims for infringement of the reproduction and distribution rights.

Also mentioned was the possibility of the Fair Use defense coming into play. In short, 17 U.S.C. §107 places a limitation on the copyright owner’s exclusive rights in certain situations deemed “fair use,” and lists four non-exclusive factors to be considered in determining if a certain usage of a copyrighted work should be deemed fair use.

Assuming the parties even get to this stage of litigation, which, more likely than not, will not happen, the fair use defense most likely will not save Newt from the witches’ cauldron known as copyright infringement. First, his campaign is receiving funding from the events where he plays the song. Second, he clearly uses the entire song and provides no comment or criticism upon it. Lastly, as mentioned above, there is a market for licensing songs for such purposes, and if he didn’t obtain the license when it was clearly possible, practically and financially, then the Judge will likely throw the defendants in the figurative cauldron.

But again, that is assuming they actually get to trial.  Expect a quick resolution of the matter –  especially considering the media coverage this matter is receiving.