It has become fairly common to read about popular musicians and bands demanding that politicians refrain from using their songs. However, a recent dispute between R.E.M. and Fox News allows us to examine the issue of whether musicians can demand that news stations not play their songs. On September 5, 2012, R.E.M.’s 1991 hit song “Losing my Religion” was played on Fox News during coverage of the Democratic National Convention. Specifically, the song was used during coverage of the convention controversy regarding the reinsertion of language invoking God and affirming Jerusalem as the capital of Israel within the Democrat’s platform. On September 6, 2012, R.E.M. and their music publisher, Warner-Tamerlane Music, issued a cease and desist statement demanding that Fox News “cease and desist from continuing its unlicensed and unauthorized use of the song.” R.E.M. lead singer Michael Stipe said in a statement, “We have little or no respect for their puff adder brand of reportage. Our music does not belong there.” R.E.M. has long supported Democratic and left-leaning politicians and causes.

A Fox News representative quickly rejected R.E.M.’s request and argued that the playing of the song was in full accordance with its license agreements with all appropriate parties. The Fox News representative also took a shot at R.E.M. in the statement by adding, “Nevertheless, we’re always flattered to have this much attention for a song selection and we hope R.E.M. was able to satisfy their publicity fix.” Michael Stipe then responded with a statement that consisted only of, “”Fox News ha ha HAHAHA.”

Although this latest controversy will likely fizzle out in the next few days, it certainly raises an interesting issue regarding whether bands like R.E.M. can demand that news stations like Fox News not play their songs. It is difficult to fully examine the legal issues and defenses because the circumstances of the song’s use are unclear. Michael Stipe’s statement did not specify whether he objects to any use of his songs on Fox News or only within particular shows, notably conservative commentary shows on the network. Professor Clay Calvert explains that the context matters: “If Fox was using only a small snippet of the song during a newscast rather than a commercial, then Fox is most likely protected by the fair-use defense to copyright law.” The fair use defense, codified in 17 U.S.C. §107, is an affirmative defense that permits the use of a copyrighted work for certain purposes, including criticism, commentary, research, and news reporting.

The R.E.M. and Fox News dispute also demonstrates a definite trend among left-leaning bands and musicians actively disassociating themselves from Republicans and right-leaning organizations during the 2012 election season. In August, the Silversun Pickups sent Mitt Romney’s campaign a cease and desist letter after the Republican candidate for president used their song “Panic Switch” during a campaign event. Similarly, Tom Petty sent Representative Michele Bachmann a cease and desist letter after she used “American Girl” when announcing her presidential campaign in 2011.