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Using samples of political speeches in music as political commentary (legality & enforcement)

Discussion in 'Copyright, Trademark, Patent Law' started by gsage, Mar 17, 2019.

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  1. gsage

    gsage Law Topic Starter New Member

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    I generally assume that the text (not the actual recording) of political speeches can be legitimately used via the Fair Use Doctrine if used in a song that parodies and rebuts the points in the speech.

    I further generally assume that there is a separate issue with the recordings themselves, and that unless the speech was recorded and released via a government outlet (Cspan, etc) that whoever recorded the speech owns the actual recording.

    Please correct me if I am wrong in either of the above, but if correct, this brings up a few questions:





    1) If an impersonator is used to revoice the quotations, does that effectively nullify any claims since the verbage falls under fair use, and the recording is not used?





    2) I see no evidence whatsoever that this has EVER been enforced in any way. For instance, here are some popular songs that have featured political speech samples:

    Billboard songs with presidential quotes - Google Search

    I am not a lawyer, and may not be searching the right databases, but via Google, I have been unable to find any reference anywhere to any lawsuit filed in relation to these or any other songs despite the fact that at least a few of them do not appear to have been granted any specific sample clearance.

    A better and more modern example might be Randy Rainbow who appears to have built a career primarily upon releasing a string of songs and music videos that contain (assumedly uncleared) audio and video samples of trump including not only public speeches, but exclusive network interviews:



    Again, despite a dizzying string of such videos over the past couple years, tens of millions of views, significant sales and streaming figures, etc. I have been able to find no evidence that any network or other entity has ever attempted to intervene or stake claim to composite work.

    So... Legalities aside, what are the real world implications here? Taking Randy Rainbow as an example, is he simply not a big enough financial target for the copyright holders to sue... or is there some sort of defense he could make regarding fair use or otherwise that would complicate any such claim?

    I realize there is some personal opinion and interpretation here, but is it simply politically untenable, or otherwise undesirable to pursue such claims? Are the networks (or other copyright holders) known for NOT pursuing any such claims in general? Attempting a real world risk assessment.




    3) I'm not even sure how to determine WHO owns the recording in most cases. Take the example of a Trump rally: The feed was given to any network that chose to air it, but who OWNS it? The Trump campaign? The venue? A particular network via some agreement? How would the owner even be determined?
     
  2. army judge

    army judge Super Moderator

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    You can hire yourself a lawyer if these issues continue to confuse you.

    The worse thing you can do is seek advice about important matters from strangers.
     
  3. gsage

    gsage Law Topic Starter New Member

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    Ignoring that hiring a lawyer is, by definition... seeking advice about important matters from a stranger...

    I don't think I AM confused... on the basic copyright issues. I could be wrong, but my initial take on the technicalities of Fair Use as it pertains to the underlying text vs the separate issue of the master recording rights is hardly a shot in the dark.

    I'm always open to hearing any other perspectives and/or any details or references that I should go look up. If there is a relevant precedent, specific resource on Fair Use, or other avenue I should be checking out, I'm all ears.

    That being said, I'm asking not only about commonly understood basic legal premises, but also rather the real world implications of enforcement in this specific realm. It is a simple fact that there are thousands of people doing just exactly the thing I'm referring to, and I've yet to come across a single instance where any of them were taken to court.... or even issued a cease and desist, though I can't be sure if that's for more complex legal reasons, them not being big enough financial targets, or that it simply looks bad to file a suit that makes it look like your network or organization is stifling free speech.

    Just because I've never seen such a thing, though, doesn't mean that someone else on here hasn't... and could possibly point me in that direction for further investigation.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    Watch the video.

    That song is freakin' hilarious.
     
  5. army judge

    army judge Super Moderator

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    Okay, then there's no need to seek emergency medical care from a licensed stranger commonly called a physician, if you suffer a severe cut during your next barroom fracas, when that stranger posing as an armed robber empties six .38 caliber slugs into your midsection, or you take a tumble down a flight of stairs and your femur protrudes through your thigh.

    Good luck in your quest to seek answers about "stuff".
     
  6. gsage

    gsage Law Topic Starter New Member

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    Some of them are even better. I tend to like "Stable Genius."

    I could point to plenty of other examples, but the outcome always seems to be the same. Nearly everything he does contains samples in both audio and video of political speech, and I can't find any evidence that he's ever encountered any pushback... and neither have any of the other artists I've dug up.

    On the flip side, the artist who recorded the #1 Billboard hit "Harlem Shake" essentially made nothing off the track after being hit with a lawsuit for the tiny and rather forgettable use of a vocal sample that wasn't cleared.

    Basically, I'm trying to get to the bottom of whether it's simply the classic case of no one cares until there's a pile of money involved, or whether there are nuances to the particulars of political speech by public figures, and their rebuttal that either tends to be more favorably viewed in the courts OR happens to be less likely to be pursued for other reasons.

    IF, for instance, NBC has never in it's existence filed such a suit for use of it's clips in such a context, THAT is actually far MORE relevant in the real world than a simplified analysis of the technicalities of any particular aspect of copyright law.
     
    Last edited: Mar 17, 2019
  7. gsage

    gsage Law Topic Starter New Member

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    Ahhh... so your textbook irony was meant.... UN-ironically.

    Got it.

    I won't make the mistake of taking you literally again.

    Your medical analogy may be too subtle, though. My non-legal mind still doesn't get it.
     
    Last edited: Mar 17, 2019
  8. zddoodah

    zddoodah Well-Known Member

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    It is true that parody can be protected as free speech. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). I'm not entirely sure what you're trying to say with the second paragraph, but it is generally the case that the person who creates a sound recording owns the copyright in that sound recording.

    Huh?
     
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  9. gsage

    gsage Law Topic Starter New Member

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    The two initial assumptions, I was relatively sure of (Fair Use relating to political speech / Separate issue for master recording rights).

    To clarify Q1:

    If the only legal exposure lies with the recording itself, then if an impersonator was hired to recreate the text so the initial recording is not used, but rather the recreated impersonation, am I correct in assuming that removes the last threat point of exposure?

    I do recall over the years hearing of a couple cases where the attempt to create an EXACT copy of something has resulted in liability even though the original recording was not used. If I remember correctly, this was the case in the successful German suit against Afrika Bambaata for recreating (not sampling) Kraftwerk (though the melody portion of the Trans Europe Express presented a separate issue).

    In those cases, though, the copyright violator was attempting to copy something that was competing in the same market as the derivative work. If that was a factor at all in the ruling, then I would think that the use of political speech recontextualized and presented in an entirely different market would be a substantially different case.

    I'm trying to gain a more nuanced understanding of relative precedents.

    Perhaps more helpful overall, though (and what I probably should have started by asking): Are there any known cases where a network or other recording rights holder has sued any musician, blogger, videographer, or other content creator for the recontextualized use of snippets (audio samples) of political speech. I've been unable to find any examples.

    If such claims tend NOT to be made (despite countless violators), are there any insights to be had as to whether there simply isn't enough money to be made from taking the violators to court, or if perhaps there is something else at play like a general understanding among the networks that it's bad PR for them to go around suing those using such snippets to express political commentary.

    Or, is there some generally understood extension of Fair Use that tends to be applied in specific circumstances to not only the underlying text, but the actual recordings? For instance, movie reviewers show the actual clips in their reviews. Tosh.0, The Soup, and MANY others have made millions where their entire business model is sharing clips they don't own, and commenting on them.

    Correct me if I'm wrong here, but my understanding is that such shows operate under the assumption that they are protected via the Fair Use doctrine, and are NOT gaining thousands of individual clearances. Is, perhaps the REASON that I can't find evidence of recording rights holders suing musicians who quote political speech that the lawyers for those rights holders know they might lose due to such an interpretation of Fair Use despite owning the master recording rights? After all, isn't using political quotes as a basis for commentary about their underlying political context essentially what movie or clip reviewers are doing by presenting and discussing the clips?

    Also, specifically... WHO owns the recording rights to Trump rally speeches? (Both before and after the 2016 election)
     
    Last edited: Mar 18, 2019
  10. gsage

    gsage Law Topic Starter New Member

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    Actually, if I remember correctly, wasn't the 2 Live Crew / Roy Orbison case one where Fair Use was determined to extend to not only the underlying melody and Lyrics, but to the audio sample itself?

    If so, doesn't that indicate that the predicates of Fair Use can also be extended to the separate issue of sampling? If so, it would seem that the doctrine covers political satire, right?

    Trying to find any cases that test the issue specifically with regards to samples and political speech... or any other cases where Fair Use was deemed to cover the sampling of the original master recording.


    EDIT: Just looked that case up. Unless I'm missing something, the US Supreme Court ultimately determined that the lyrics, melody, AND use of the master recording were ALL covered by Fair Use in the case of parody. Not clear why that wouldn't be the very first thing anyone brings up in such a discussion.

    Isn't parody a fair description of what Randy Rainbow, for instance, is doing? He's taking clips he doesn't own the rights to, and forming a collage where the point is to poke fun at the politician, point out the absurdity of the statements he's quoting, etc. Is there any reason at all to interpret his songs as NOT being covered by the precedent in the 2 Live Crew case?

    Supreme court decision would seem to be a slam dunk indicating that political speech can be sampled in a song for the purpose of political parody. Are there any cases that contradict this? If so, wouldn't the Supreme Court precedent supersede them?
     
    Last edited: Mar 18, 2019

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