David Byrne is suing the Republican governor of Florida, Charlie Crist, because Crist used the great Byrne/Talking Heads track "Road to Nowhere" in a campaign ad (Crist is now running for senate). Byrne writes:

Well, using a recording of a song, or even just using that song and not the original recording, in an advertisement without permission is illegal, unless the composition has gone into the public domain. It's not just illegal because one is supposed to pay for such use and not paying is, well, theft -- it's also illegal because one has to ask permission, and that permission can be turned down.
Besides being theft, use of the song and my voice in a campaign ad implies that I, as writer and singer of the song, might have granted Crist permission to use it, and that I therefore endorse him and/or the Republican Party, of which he was a member until very, very recently. The general public might also think I simply license the use of my songs to anyone who will pay the going rate, but that's not true either, as I have never licensed a song for use in an ad. I do license songs to commercial films and TV shows (if they pay the going rate), and to dance companies and student filmmakers mostly for free. But not to ads.
I'm a bit of a throwback that way, as I still believe songs occasionally mean something to people -- they obviously mean something personal to the writer, and often to the listener as well.

05.25.10: Yours Truly vs. the Governor of Florida (David Byrne's journal)

More about the lawsuit on Billboard.com.

Talking Heads: Little Creatures (album link @ Amazon)

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Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

MORE: Copyfight • Entertainment • music • politics

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Anonymous

“Crist, what an asshole”
not_kevitivity

In Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978) using 15 seconds of a song in a political was ruled as “fair use”.

Summaries of Fair Use Cases from Stanford:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html
Roast Beef

I do license songs…to dance companies and student filmmakers mostly for free.

Another reason to love Mr. Byrne! I remain hopeful that we will meet on a bike path somewhere in NYC, and marry.

It’s not unusual for artists to object to their work being used in public for someone else’s material gain, or in such a way that indicates the artist approves of a product or practice. Tom Waits did this like 20 years ago when somebody wrote a jingle that too cosely resembled “Step Right Up”, thereby missing the whole point of the song. Byrne nails it, basically. Smart guy.
Felton

David Byrne is the anti-Crist!
- andyhavens
  
  And the number on his head is “365″
Snig

Hah! Now the RIAA is going to disconnect Crist from the internet and sue him for stealing music. Isn’t that how it works?
dculberson

“I have never licensed a song for use in an ad.”

Okay, that’s one more in an incredibly long list of reasons to love David Byrne.
- Anonymous
  
  Because it would be horrible for a musician to make a living from their music.
  
  There’s a great bit from On the Media with Amanda Palmer about why she’s not afraid to take your money:
  
  http://www.onthemedia.org/transcripts/2010/03/12/05
- Anonymous
  
  Yes, he is a true artist! : ) Go David Byrne!
jmzero

Regardless of the parties involved, I think this is a well merited, well reasoned suit.

That said, in my ideal world, that song would be public domain in another ~5 years (I think 30 years is pretty fair).
Xenu

He should go after the stations that played the ad as well.
scifijazznik

In the holy doctrine of scifijazznik, it is writ (large) that the holy trinity of goddamn rock’n'roll doth be comprised of David Byrne, David Bowie, and Brian Eno. They are infallible(*) and, thus, their words takeneth as gospel.

You’d think Republicans/right wingers would have learned by now that most artists(**) don’t particularly like their work to be associated with the party that would completely de-fund the arts if they had their way. How many examples have there been of this exact thing in the past two years?

* OK, so that whole Tin Machine was totally fallible.

** Ted Nugent exempted.
- querent
  
  ** SRV played Bush the Younger’s first inauguration party. /sigh
  - scifijazznik
    
    Because W. agreed to pay him his weight in coke.
    
    /from Texas.
  - Anonymous
    
    You mean Bush the Elder… Stevie was dead when Dubya was elected.
    - scifijazznik
      
      Heh…I just realized that you are indeed correct. SRV croaked in what? 1990 or 91? It only seems like W. was presdentin’ for 20 years…
- wylkyn
  
  I would have to agree to your assessment of the Holy Trinity, though I would like to put forth Mr. Belew as a potential guitar saint, or something.
  
  As for “** Ted Nugent exempted.”
  You’re talking about a guy who wrote the lyric “All you pretty women, you’re so far and in-between” as opposed to “…so few and far between” which actually means something. I cringe at the stupid every time that song comes on the radio.
- das memsen
  
  Those spam filters are crazy. Clearly, what you meant to say was “everything AFTER Tim Machine was totally fallible, but Tin Machine itself was the last brilliant and musically-gutsy thing David Bowie ever did with himself. Reeves Gabrels rejuvenated Bowie for the last time.”
  
  The level of sophistication on these filters, I tell ya…
  - scifijazznik
    
    We’ll have to agree to disagree on that. I’ve seen Bowie several times and went to see Tin Machine despite not really digging the records. I thought they were terrible. I’ll grant you that Reeves is an interesting player/sound architect. As far as life after Tin Machine, yeah, you’re mostly right. There have been a few bright spots– a couple of tunes on Outside and Earthling. But I think it’s safe to say that, in general, rock music is best left to the kiddos. As Bowie himself sagely suggested, “let all the children boogie.”
    - Tdawwg
      
      I’ll see your Tin Machine and raise you one Metal Machine Music.
      - das memsen
        
        At least Lou Reed went on to make other great music after that point. MMM wasn’t really the beginning of the end of anything, just him fucking around.
        
        I still stand by Tin Machine- it is definitely an acquired taste, something you have to work at to love, but once it clicks in, it’s great. REALLY great.
        
        +1 for Adrian Belew! He makes everyone sound better, and easily competes with those big 3.
        
        Interestingly, that recent Eno/Byrne album was mostly boring and uninspired. Predictable, 2nd rate, unimpressive. Yet I wouldn’t say either of them are past their prime- in fact, Eno’s recent ANOTHER DAY ON EARTH might be the best thing he’s ever done, and that’s saying a lot.
      - Ugly Canuck
        
        PS Hey Tin Machine was and remains very under-appreciated IMHO.
        Check this out- the louder, the better, like Ziggy….:
        
        http://www.youtube.com/watch?v=H7PgUIV_d1c
        
        AAh , sweet bayou memories….
Anonymous

“If Crist and his campaign folks had asked to use the song, I would have said no â€” even if they had offered a lot of money, such as I have been offered in the past for ad use (though Iâ€™ve always turned these offers down).”

I wonder if someday David Byrne will say to himself: “I know I have a policy about using my songs in ads, but it’s uncanny — this candidate’s position on tax reform is really just like burning down a house.”
Anonymous

I wonder if Guiliani ever paid for use of The Clash “Rudy Can’t Fail” (but Fail he did!) You can be sure Guiliani didn’t have a clue about the song aside from the title
TPK

A 80′s Italian TV ad with Road to nowhere music (but “lyrics” in Italian) can be found here:
http://video.google.com/videoplay?docid=-2929626830808084241#
sloverlord

Give me a break. If this had been an anti-war PSA made by middle-schoolers, instead of a campaign ad for a Republican politician, and Byrne had complained, everyone on BoingBoing would be screaming about fair use.
- dculberson
  
  Not a chance. Take your misconceptions and project them elsewhere.
- Xeni Jardin
  
  Bullshit.
- Anonymous
  
  Except that by playing it in the ad they are technically using it for commercial purposes, but rather to get himself in a position of power that pays pretty well. Basically, him using this in the ad could possibly lead him to getting money that would otherwise not have gotten.
  
  Basically, since it was in a commercial that says “Vote for ME” it’s not fair use.
  - Hools Verne
    
    http://en.wikipedia.org/wiki/Shepard_Fairey
- Anonymous
  
  “Give me a break. If this had been an anti-war PSA made by middle-schoolers, instead of a campaign ad for a Republican politician, and Byrne had complained, everyone on BoingBoing would be screaming about fair use.”
  
  This would be the case if your fictitious fair use issue was actually a fair use issue, instead of the dumb one you presented. Leave your terrible straw mans at whatever political site you came from.
mgfarrelly

I do love the notion of pro-business conservatives abusing the intellectual property rights of an artist. Hey guys, most musicians are the small-business, hard-working folks you’re always banging on about wanting to help. Stop stealing from them!
aj

But wait, per BB values, shouldn’t the song be available on a reasonable and non-discriminatory basis, i.e. as a compulsory license, for remixers to do what they want with it? Or is there a special exception for Republicans from this principle?
Anonymous

He should get their internet disconnected for life.
Strabo

Oh, too bad there’s no edit function.

I should add that, to be fair, it is possible the author may find the use of their work in association with that particular political message to be damaging to the author’s reputation. I think I would find that claim to be credible, and that is why I imagine there have been so many instances of this happening in the last few election cycles (invariably with liberal artists asking Republican campaigns to stop airing ads using their music, or stop playing their music at campaign rallies).
willy

But…. but…. IOKIYAR !
Strabo

I think this probably qualifies as Fair Use. If someone were to use this song in a political ad on, for example, the Alaskan bridge to nowhere, it would DEFINITELY be fair use. Even if the lyrics to the song weren’t entire applicable to the subject of the ad though, I think there’s a pretty good chance it would still be fair use. Particularly given not_kevitivity’s link above.

Having said that, political campaigns tend to screw up and use the songs first without asking permission, and then end up taking them down at the artist’s request, fair use or not, due to the artist not subscribing to the political message. I can think of probably a dozen different instances in just the last three election cycles where this has happened.
- Jer
  
  Under what possible version of Fair Use would this qualify? It isn’t parody. It isn’t being used in commentary or criticism of the work. It isn’t being used for educational purposes. It certainly isn’t a news broadcast. There is no definition of Fair Use in the US that I know of that allows someone to use a copyrighted work for advertising purposes without the creator’s permission (or at least the copyright holder’s permission) – even in political ads.
  
  You can argue that Fair Use should extend to using stuff like this for political commentary – but AFAIK this is a clear-cut example where US law stands firmly in the camp of “not Fair Use”. Frankly I don’t buy the argument in favor of Fair Use here – political speech should be protected, but telling politicians “find a way to spread your message that doesn’t involve ripping off copyrighted works” isn’t particularly onerous.
  - Strabo
    
    I haven’t watched the ad, nor am I a lawyer in copyright law or otherwise, so, caveats out of the way, I’ll begin to waste my time!
    
    As I said above, if the lyrics, specifically “We’re on a road to nowhere,” is even tangentially related to the subject of the ad, then I think that would qualify as Fair Use as criticism, commentary, and educational use. The criticism, commentary, and educational use exceptions don’t specify that the use be directed at the work itself (i.e., commentary or criticism of the song itself, just that the new derivative work be a form of criticism or commentary itself). I don’t think the courts need to create some new “political use” exception in Fair Use, as I feel that political use already falls well within the above guidelines.
    
    As I said above, even if the lyrics of the song, particularly the above line, don’t have any specific relevance to the subject of the ad, I _still_ feel that it probably qualifies as Fair Use. There is an easy balancing test used by the courts featuring four questions used to determine whether a work qualifies as Fair Use. They are:
    
    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.
    
    The use, in this case, is of a political and non-commercial nature. The ad is not selling copies of the song. The incorporated work is only sampled (and possibly altered, in my example above, if I were making the ad, I would have commissioned a cover changing the lyrics to “We’re on a bridge to nowhere”), and not in a complete form (likely only 15 or 30 seconds, at most, of the total work). Finally, the impact upon the original author’s ability to exploit his own work would be absolutely unaffected. People would not simply copy and listen to the ad in lieu of going onto iTunes or to their local brick-n-mortar music store to buy a new CD with the song. In fact, I could easily see hearing the ad reminding people and causing them to want to go buy a copy.
  - grimc
    
    I think the argument that McCain’s lawyers were offering when he was being sued by Jackson Browne for this same thing was, actually, ‘fair use as political speech’. McCain settled and issued an apology, which suggests that things weren’t looking good for that reasoning in court. Bonus FYI: Byrne is using the same lawyer that won the settlement for Browne.
Anonymous

Crist wasn’t the only one that violated copyright. So did his opponent, Marco Rubio.

Unfortunately, Rubio can’t even chime in and call his political rival a song thief along the lines of Napster. The Miami native is caught up in his own song-stealing scandal with another has-been rock band.

Rubio used the Steve Miller Band’s 1976 hit “Take the Money and Run” in an ad about Crist without permission. The band didn’t sue, but forced the Rubio campaign to stop running the ad.

http://www.nbcmiami.com/news/local-beat/Crist-Sued-by-Rocker-for-1-Million-94777744.html
drivenbyboredom

Other than the fact that this site is more left wing and that everyone loves David Byrne, the reason people are taking issue with this is because the song is not being used for any artistic usage. It is being used purely as advertising and I havent seen the commercial but I assume it was uncredited as well. Even if Byrne had decided release his music with a Creative Commons license this would still violate that.
Anonymous

Now THIS is what should incurr RIAA’s fifty thousand dollars a song fee… Downloading a song for personal use gets millions of dollars in fines, yet this is the sort of copyright infringement that actually hurts artists, and I’m sure no one will be punished.
Anonymous

Is it really the case that Byrne has not engaged one or more of the various collective licensing organizations to handle requests for his songs?

If true, that’s incredible, and more props to him for handling all licensing individually.
Usually the way these things go is that the artist, ( Springsteen, e.g.) has given the negotiating power to Harry Fox, or BMI, or what have you, and therefore is in no position to object when undesirable user X pays the going rate for a song, despite really wishing to be able to selectively license.
- Anonymous
  
  i’m not sure the details of how mr. byrne handles his business but i guaranty that he makes the decisions on these things himself. he is extremely approachable and is often seen biking with his family around town. he has a thoughtful blog and provides his personal playlists via a well administered free music server. i am sure that if mr. crist had contacted him privately about licensing his song, he would have received a timely and professional reply.
MadRat

In the past few days I was wondering, years ago rock stars would make a big fuss over their song being used in a political campaign, what ever happened to that? I should have just waited a few days.
Anonymous

Someone needs to make a list of politicians who have appropriated musician’s songs for their campaigns without their permission. Everyone from MGMT in france to Little Pink Houses by Reagan.

Byrne is awesome, not only for illustrating the hypocrisy, but for being among the first well-known artists to release some of his music under the Creative Commons license.
jakegraft

Just a factoid. The Hi Vista community hall is the same as the “Kill Bill” church.
Anonymous

Technically, Crist is the Republican Governor of Florida who is running as an Independant for the Senate against Republican Marco Rubio and whomever the Democrat in this election is.

Just sayin’.
- dculberson
  
  And this ad was made and aired while he was running as a Republican.
djfrantz

Why couldn’t Byrne confront him publicly, at some function where he is giving a speech.

Crist: “OH David Byrne! I’m glad you’re here! Yes of course I’ll take a question from the floor.”

Byrne: [insert above response]

Crist: “uhm. my bad?”

Byrne opens his trenchcoat and a flurry of lawyers is released, devouring Crist.
Anonymous

Great song is right. I re-fell in love with it a few years ago when Editors started covering it.

From Pinkpop 2006: http://www.youtube.com/watch?v=ETuahEXrh2s
Anonymous

Seems pretty clear-cut to me. Unauthorised use. No permission. Breech of copyright. What more does he need? Sue the pants off ‘em!
Ugly Canuck

Maybe the politicians ought to employ – patronize, if you prefer – their own poets and musicians, to sing their praises, or to diss their rivals – oh, wait, that’s been done for centuries, if not far longer.
Well then, they ought to pay the piper, if they call for the tune, eh? In accord with the harmonious ways of yore, when bards were right prized.

David Byrne sues FL gov over unauthorized use of "Road to Nowhere" in senate campaign ad

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