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By Kenya Wortherly
Newt Gingrich's campaign infringed the copyrights in the 1982 Survivor hit “Eye of the Tiger,” according to a complaint filed Jan. 30 in the U.S. District Court for Northern District of Illinois (Rude Music Inc. v. Newt 2012, N.D. Ill., No. 1:12-cv-00640, complaint filed 1/30/12).
The complaint alleged that Newt 2012 Inc., Gingrich's campaign organization, engaged in willful infringement by playing “Eye of the Tiger” at numerous events, including the Conservative Political Action Conference and the Southern Republican Leadership Conference starting as far back as early 2009.
Survivor, a rock band formed in Chicago in 1978, is best known for its double-platinum, Grammy Award-winning track, “Eye of the Tiger,” which was the principal theme for the 1982 movie Rocky III starring Sylvester Stallone. The song was also used by the McCain/Palin campaign in 2008.
Frankie Sullivan, Survivor's guitarist and a founding member of the band, is one of the song's composers. He sued, alleging that the Gingrich campaign had staged unauthorized public performances of “Eye of the Tiger” thereby infringing his copyright interest.
The American Conservative Union, a political action committee founded in 1964, was also named in the complaint for taping, reproducing, and distributing video featuring the work and Gingrich. Sullivan labeled the actions as unauthorized, unlicensed, and infringing.
Sullivan further argued that, Gingrich—the owner of a media company, a former elected official, and the author or co-author of more than 40 copyrighted works—would have knowledge of copyright laws, and thus that his infringement was willful.
As further evidence of Gingrich's sophistication and knowledge about copyright laws, the complaint noted that, in response to the proposed Stop Online Piracy Act legislation, Gingrich stated, “We have a patent office, we have copyright law. If a company finds that it has genuinely been infringed upon, it has the right to sue ….”
Sullivan's complaint asked for a preliminary and permanent injunction against further performance of the song, and for damages and attorneys' fees.
Other politicians have clashed with songwriters and artists over politicians' use of copyrighted music in their election campaigns.
This ongoing legal controversy was the topic of a November 2010 American Bar Association teleconference. Panelists during that session noted that the issue had been alive as far back as the 1980s, when Bruce Springstein's “Born in the U.S.A.” was used for the Ronald Reagan campaign, and Bobby McFerrin's “Don't Worry, Be Happy” was used by the George H.W. Bush campaign.
Other high-profile cases discussed by the ABA conferees included use of Jackson Brown's “Running on Empty” in a YouTube video associated with the Ohio Republican party during the 2008 presidential campaign of Sen. John S. McCain (R-Ariz.). Brown v. McCain, No. 2:08-cv-05334 (C.D. Cal., dismissed Aug. 4, 2009). More recently, Rep. Michelle Bachmann (R-Minn.) tangled with musician and songwriter Tom Petty, who objected to her use of his song “American Girl” in her presidential campaign.
At issue in these disputes is whether use of the music is allowed under the fair use doctrine or under the campaign venue's performance rights license, copyright lawyers interviewed by BNA said in July 2011. However, even if the musical performances are covered by licensing, several experts said, false endorsement claims against a candidate of campaign under the Lanham Act and under state right of publicity statutes might be successful.
Annette M. McGarry of McGarry & McGarry, Chicago, represented Frankie Sullivan.
Complaint at http://pub.bna.com/ptcj/rudemusicvnewt.pdf
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