Tag Archive: Politics


Fox News and R.E.M.

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.

The Federal Communications Commission (FCC) is actively promoting a proposal that would require local television stations to post information about political advertising on an FCC central website. Local television stations are currently required to maintain public files at their offices for inspection by members of the public. The files normally include information about programming, staffing, and spending on political advertisements. The problem is that few people know about the filing requirement and therefore very few people access the files. The FCC proposal seeks to provide broader access to the public by requiring the television stations to upload the files to an FCC-operated website. Critics assert that the change would be an unnecessary financial burden for local stations and does not clearly benefit the public. However, advocates for the proposal claim that the requirement will make it easier to access public information and provides greater transparency about the political advertisements during political campaigns. In addition, the FCC notes that initial uploading of the files will cost less than $1,000 for most television stations and will save television stations money in the long run by avoiding printing and storage costs. The FCC is expected to vote on the proposal at an April 27 meeting and it seems likely that the measure will pass.

The recent Rush Limbaugh controversy has generated two interesting developments in media law. The controversy began about two weeks ago when Limbaugh referred to Sandra Fluke, a Georgetown law student, as a “prostitute” and a “slut” after she testified to congressional Democrats regarding the health care mandate’s coverage of birth control. Shortly after her testimony, Limbaugh said on his talk radio show, “What does it say about the college coed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.” The first interesting development in media law is that Gloria Allred is leading an effort for Limbaugh to be charged with defamation over the comments. Allred, a well-known celebrity lawyer, recently sent a letter to the Palm Beach County Attorney’s Office saying prosecutors should consider charging Limbaugh under an 1883 law making it a misdemeanor to question a woman’s chastity. Allred explains, “He [Limbaugh] has personally targeted her and vilified her, and he should have to bear the consequences of his extremely outrageous, tasteless and damaging conduct.” The second development is that Jane Fonda, Gloria Steinem, and Robin Morgan are calling for the Federal Communications Commission (FCC) to prevent Limbaugh from continuing his show. In a recent editorial, the three activists argued that if enough listeners complain about Limbaugh, then the stations that carry him could be denied license renewal. One commentator notes that the FCC effort is likely futile because (1) it is logistically difficult based on the nature of the FCC license renewal process; (2) the effort would raise serious First Amendment concerns; and (3) the effort could create a political backlash.

Increased Criticism of Obama Administration’s Use of the Espionage Act

There has been increased criticism of the Obama administration for the use of the Espionage Act against whistleblowers. The Act was enacted against the backdrop of World War I in 1917 to punish those who gave aid enemies of the United States. The Act was used three times in all the prior administrations to bring cases against government officials accused of providing classified information to the media but has been used six times since President Obama took office in 2009. In a recent controversial case, John Kiriakou, a former C.I.A. agent who became a Democratic staff member on the Senate Foreign Relations Committee, was charged under the Act with passing on disclosed information to the media about C.I.A. interrogation methods. Mark Corallo, who served as the Justice Department’s spokesman in the George W. Bush administration, said he was “sort of shocked” by the volume of leak prosecutions under President Obama. “We would have gotten hammered for it,” he said. Dan Kennedy, an assistant professor at Northeastern University’s School of Journalism, notes, “I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters.” Kennedy also notes that the administration’s use of the Act “has led to a virtual war on journalism and free expression.” The Obama administration has defended its aggressive approach by stating that the higher volume of prosecutions is just happenstance. The administration rejects assertions that the volume of prosecutions is politically-motivated. This aggressive approach will likely mean that government officials (both current and former) will use more secretive ways of providing information to the media.

Facebook and Politico: The New Primary

Historically, the American Civil Liberties Union (ACLU) has served as the “nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”  The latest issue that has caught the attention of the ACLU is the use of Facebook’s  “sentiment analysis tool” which provides data specifically to the American political organization, Politico.

United States users of Facebook who mention a presidential candidate’s name, either in public or private posts, are fed through Facebook’s sentiment analysis tool do determine the winner of the “Facebook Primary.”  The ACLU argues that the data collected from users for the Facebook and Politico’s joint effort to “measure GOP candidate buzz” was gathered without the knowledge of the Facebook users.  The ACLU claims that Facebook “failed to reveal any mention of user consent anywhere in their announcement of the project and questions how Facebook decided that the U.S. users agreed that their personal communication can and should be used in this way.”

Whether or not Facebook failed to gain the consent of its United States users in using personal communication, the long-term effect of this marriage between social media and political websites, such as Politico, suggests the growing power of social media in American society. Political candidates will likely ramp up the use of programs like this in order to maximize their electability.

Mitt Romney Campaign Ad, Tom Brokaw, and Fair Use

Republican presidential candidate Mitt Romney has generated some controversy in recent days over a campaign attack ad against rival Newt Gingrich. The ad features old footage of Tom Brokaw reporting on the Newt Gingrich ethics scandal in 1997.  In the ad, Brokaw reports that Gingrich was found guilty by the House ethics committee. Brokaw said in a statement that he is “extremely uncomfortable with the extended use of my personal image in this political ad.” He also said, “I do not want my role as a journalist compromised for political gain by any campaign.” NBC lawyers have asked the Romney campaign to remove the ad and any reference to the network in future campaign ads. However, it is likely that the use of the Tom Brokaw footage by the Romney campaign is permissible under the fair use doctrine.  Section 107 of the U.S. Copyright Law allows the reproduction of a particular work if it is considered a “criticism, comment, news reporting, teaching, scholarship, and research.” At the end of the day, it is likely that the Romney campaign will just pull the ad but the genie has already been let out of the bottle. The most significant impact of this controversy is that it has greatly increased circulation and discussion of a negative ad. It thus will probably hurt Gingrich in the polls by reminding voters of his ethical baggage.




Provide Website Feedback / Accessibility Statement / Privacy Statement