Joe Walsh (rock star) v. Joe Walsh (candidate)

[MikeA]

I've got a pretty strong feeling that Paterno will retract that threat of lawsuit in this particular case. Seriously doubt that our "Joe" had much to do with the decision to pursue it.

This ties back to discussions we've had in another thread on Copyright. There were some things in that letter that Candidate "Walsh" wrote that I don't think he's right about:

"We are not making any money off of the video, are not taking any money away from Joe Walsh (the rockstar), the lyrics are distinct, and another band recorded this video. Anyone can do a “cover” of the song. By the way, if you were actually considering a lawsuit, you probably want to be suing Joe Cantafio separately and equally, but be careful on that one, Joe is more outspoken than I am."

Technically, that is not correct as pointed out by BerniesBender. The "covers" done by "anyone" are generally done in Bars or Night Clubs and the owners have paid for the right to allow bands to cover songs legally.

I guess here the question is whether use of the instrumental part that is Joe Walsh's property is legal when the lyrics in use are unique. I seem to recall a lawsuit in which a drum track from an artist was looped by a Rapper. There was one little change in the loop...a tiny 1/32 or something beat that the Rapper claimed made the loop HIS and thereby legal to use without paying royalties. I don't remember how that lawsuit was settled.

[TimothyBFan]

I'd like to think that Joe (the rockstar) would think this all kind of trivial and would probably get a kick out of Joe (the candidate) using the song in this way. I also have to wonder if Joe (the rockstar) is aware that the lawyer is doing this. I agree that the letter seemed a bit unprofessional for a lawyer. I know he was trying to be funny but a lawsuit is really not something to be comical about.

[sodascouts]

"We are not making any money off of the video, are not taking any money away from Joe Walsh (the rockstar), the lyrics are distinct, and another band recorded this video. Anyone can do a “cover” of the song. By the way, if you were actually considering a lawsuit, you probably want to be suing Joe Cantafio separately and equally, but be careful on that one, Joe is more outspoken than I am."

Technically, that is not correct as pointed out by BerniesBender. The "covers" done by "anyone" are generally done in Bars or Night Clubs and the owners have paid for the right to allow bands to cover songs legally.

I guess here the question is whether use of the instrumental part that is Joe Walsh's property is legal when the lyrics in use are unique. I seem to recall a lawsuit in which a drum track from an artist was looped by a Rapper. There was one little change in the loop...a tiny 1/32 or something beat that the Rapper claimed made the loop HIS and thereby legal to use without paying royalties. I don't remember how that lawsuit was settled.

But in this case, the music used in the video WAS licensed for covers - it was a karaoke track, not the original. The makers of the karaoke track had compensated the songwriters for its inclusion on their disc, just as night club owners do in order to allow covers in their bars.

This is related to the compulsory license law we spoke about in another thread a while back, where songwriters cannot prevent the licensing of their songs by those wishing to cover them as long as they are compensated according to the standard rate determined by law. The entire business of karaoke is built upon this law.

That doesn't mean someone can do whatever they want with a karaoke track and it's fair use. For instance, you couldn't take a karaoke track, record yourself over it, and sell it. The commercial/profit aspect IS relevant for Joe Walsh (Candidate) to bring up. When someone is seeking to profit monetarily from the work of another, there are laws that come into play which are different from those that apply to a non-profit venture.

And non-profit parody IS protected. In recognition of this, Henley's lawyers in Henley v. Devore produced a nuanced definition of "parody" which attempted to exclude this type of political campaign video, but its applicability is arguable. ETA: Indeed, it is very possible that this song is not "parody" but "satire" which is less protected.

Paterno calls the First Amendment the "first refuge of political scoundrels." I call it the first refuge of those who seek the protection of their free speech. While it is fair to say that there are people who abuse the right to free speech, it certainly is not the default assumption whenever someone - including a politician - invokes it. I found that unqualified statement in Paterno's letter downright disturbing.

I think Paterno et. al knew all along their case was weak at best. Lawyers often make noise about lawsuits they have no intention of carrying out, hoping to intimidate their target into compliance. They know the word "lawsuit" will frighten most people. The lawyers take advantage of these people's fear, their ignorance of their rights, and their naive trust that lawyers wouldn't misrepresent the law in order to deceive them. I find such tactics loathsome, and I wish the Eagles would not give their lawyers a free hand to employ them.

The fact that the letter was sent to the news before it was sent to Joe Walsh (Candidate) is telling - it reeks of an intimidation and "court of public opinion" technique. I doubt they ever intended to sue.

I suppose Joe's lawyers could have pulled a Henley and invoked the Lanham Act or something, but is it really worth their time when they are not assured of a win and they must know in their hearts that very few, if any, people think that Joe Walsh (candidate) is endorsed by Joe Walsh (rock star) simply because the Candidate used a karaoke track of Joe's music for a parody? I doubt it.

Even Henley did not wish to pursue a lawsuit against DeVore at first, but when DeVore refused to remove the video from YouTube or his site, Henley felt forced to take action. Perhaps, despite his "fighting" words, Joe Walsh (Candidate) will quietly leave the video off of his site (it's not there now).

After all, he's already gotten some good political mileage out of it. Ironically, Paterno has enabled a new campaign speech talking point for the Candidate. Obviously, the Candidate's reply to Paterno is designed to get his political base energized and hopefully attract new voters by presenting himself as a "regular guy" being attacked by wealthy "Hollywood" lawyers whom he represents as having nothing but scorn for the residents of Illinois. Notice how he focuses on disparaging Paterno rather than the more beloved Joe Walsh (rock star), of whom the Candidate himself professes to be a fan and compliments more than once. Notice how he characterizes this as an attack on his political beliefs rather than a copyright issue.

The "Hollywood lawyer" who is contemptuous of Mid-Westerners is a reductive generalization, but it's an effective one, greatly aided by the condescending nature of Paterno's letter (it seems that might have backfired). If a Republican can divorce himself from the stereotype that "the GOP only cares about the rich" - which this letter attempts to do for Joe Walsh (Candidate) - he has a greater chance of political success.

I wouldn't be surprised if this got him the GOP nomination to run against the Democratic hopeful - at this point, he doesn't even have that nomination! He may not even be the GOP candidate for this district, so I find his "you're doing this because I'm a threat to liberals" claim to be hilariously overblown and the least convincing aspect of his reply...but that's just me.

Plus, the Candidate brings up a good point - in Henley v. DeVore, DeVore was the one singing. That is not the case here. Joe Walsh (candidate) did not perform this, and his letter implies that he did not hire Cantafio to do so. Cantafio performed the song because he was Walsh (candidate)'s friend and supporter. Of course, the Candidate did use Cantafio's work in his campaign... but it does complicate things legally that he was not involved in the performance of the music that the lawyers claim violates copyright.

And while the fact that Cantafio is a blue-collar guy who runs a charity benefiting veterans has no relevance legally, it is a bit of an ouchie PR-wise. If they were to sue Cantafio, Paterno et al (and honestly, by extension, our own Joe) would look like douchebags.

I do think that it is possible that stupid people might believe that Joe Walsh (Candidate) is Joe Walsh the rock star because, well, they are stupid. But the law is not designed to cater to a small minority of morons, is it? It is not the fault of Joe Walsh (Candidate) that there are stupid people out there. Their misunderstanding is not automatically indicative of wrongdoing on the Candidate's part. It would have to be proven that he was intentionally trying to mislead the morons.

Of course, I must end this by saying that I am not a legal expert and the above is simply my understanding of the law. I invite anyone who has a different interpretation to reply!

[tbs fanatic]

Just a couple of days ago in our newspaper was an article about ASCAP: The American Society of Composers, Authors and Publishers. It had told a local bar that it would have to pay licensing fees if it wanted to continue hosting live music. The bar decided it couldn't afford it and stopped the music. Apparently ASCAP have these undercover agents who go around to bars with live music to check if the music being played is causing any copyright infringement. If so the bar has to pay up or stop or have a hefty lawsuit on its hands. Yikes! Fortunately, another place that could afford the fees opened up and the music continues.

[sodascouts]

Wow, TBSF! It's the ASCAP shakedown! lol! But I guess they must get a lot of money that way to make such "undercover operations" profitable.

[MikeA]

I'm arguing to be arguing Nanc. He IS using it for profit. He benefits if he is elected and if he improves his chances of getting elected by using the song, then he is profiting by it.

Lots of angles on this one!

[sodascouts]

I considered that, Mike. However, we have to distinguish between "profit" and "benefit." They're not the same. I benefit from running this site because it gratifies me to run it, but I don't profit from it monetarily. Heck, I don't even do those kick-back from Ticketmaster and Amazon links (not that there's anything wrong with that). Therefore, even though I benefit from the site in an intangible "feel good" manner, it is still a non-profit venture.

The benefit Candidate Joe Walsh receives from that song parody is that people like Joe's music, so their ears maybe perk up and it makes them listen to views expressed in the song more closely. Also, it makes them remember the candidate's name more easily. Does this amount to a tangible, commercial "profit"? That would be difficult to prove. Again, "benefit" and "profit" are not interchangeable terms.

One could argue that the Candidate profits monetarily from the song if someone donated money to him for the sole reason that he used that song. That's not a very reasonable argument, though, because one would donate to the man because one agrees with his views, even if one was introduced to those views through the song.

Again, let's do a parallel with this site. Say I met a person because of this site and we made friends and this person gave me a ticket to a show. Could we call that a profit due to the site, or is it simply a gift because the person was my friend who happened to meet me through the site? I think we can all agree it's the latter. The same can be said for the song parody.

The thing about trying to prove/argue indirect profit is that it can be stretched to just about anything. This whole world is cause/effect. One thing leads to another leads to another leads to another. Where do we stop? Best to limit ourselves to the tangible and direct or we can get really out of control.

[MikeA]

Does the song provide Mr. Candidate Walsh with a "profit"?

Some people are motivated by strictly altruistic motives. Money is not a factor. But I wonder if Mr. Walsh stands to make more money in income by occupying that Congressional Seat than he makes now in whatever position he is in?

He has to win that seat. Could he win it without using Mr. Rocker Walsh's property? If so then why is he using it. He is profiting from the use of it. It would be horribly difficult to guesstimate a quantitative value but value is there.

Now, on the other hand, if that song he used was a "Karaoke" version, and if he paid for that version, then I can see where there "might" be an argument in Mr Candidate Walsh's favor. But, I think of a Karaoke version being something that you play from a recording and sing along with. The Candidate is having a band play it and sing it using re-versed lyrics. He is not using it as was intended by the rights granted by Rocker Walsh...."entertainment".

Whatever the case, the song WAS selected because is was "invented" by an Artist who happened to have the same name as the Candidate and because it was a song that a lot of potential voters were familiar with. And, he is using that song without the consent of the Artist whose intellectual property it is!

As for songs used in Campaigns, I really have a problem with misuse such as this seems to be... assuming that Rocker Walsh does NOT want to endorse this Candidate Walsh. He may stand for everything Rocker Walsh stands against. Or they may be in perfect alignment. Whatever the case, Candidate Walsh should have gotten approval or release from the owner of the intellectual property before he used it.

I don't know if Rocker Walsh has been involved in this arbitration or not. Probably not. But I'm pretty sure that he is aware of it now <LOL> Who knows, we might see Rocker Joe Walsh running for office once more just to be sure his namesake doesn't win. I'll bet "free gas" will carry more weight than a plagiarized song will!

[sodascouts]

The "profit" of the salary he would receive if elected cannot be proven to be solely a direct result of the video. That's very important legally.

Is what the Candidate doing ethical? That's another matter.

I love our Joe. I built a freaking site dedicated to him. I don't care about Candidate Joe Walsh. Politicians and lawyers are on the same page to me when it comes to ethics - a page that's full of holes.

I can understand why Joe Walsh (rock star) wouldn't be down with this - assuming, of course, he knows what's going on. lol

However, many times, what we feel is inappropriate/unethical and what is against the law are not the same.

What Paterno et al don't get is that they probably could have gotten this video removed using a little charm rather than a snotty open letter to the press. The Candidate says he's a fan, and Cantafio is, too. If Joe Walsh (rock star) had picked up the phone and said "Hi, how ya doin'? Hey, I wanna talk to you about that 'Lead the Way' video. You seem like a nice guy who listens to people, so I wanted to tell you that it kinda makes me uncomfortable. I know you probably worked hard on it and all, and I'm sure you didn't mean any harm, but wouldya take it down anyway? I would really appreciate it 'cause this is important to me. Consider it a personal favor, man. I'll even send ya a signed copy of Long Road Out of Eden."

I bet it would have been taken down without any hard feelings.

I've resolved (or downright avoided) many a conflict that way - honey instead of vinegar. Conversation instead of confrontation.

Joe has got starpower and he's got a way about him that people respond to positively. It would've at least been worth a try.

[MikeA]

Can't disagree with that (Joe Rocker being nice and requesting removal). But like you said and I believe myself...Joe very likely had no idea that any of this was transpiring until it hit the fan...and I've seen no indication that he's aware of it now though I would find it hard to believe he doesn't know now.

I'm thinking that if I was Rocker Joe, I'd be thinking about a new legal representative for either of two reasons...bad personal technique and also the possibility that what The Candidate Joe did was not violating Joe Rocker's rights.

But that's just me. On second thought...maybe neither Joe Rocker nor Joe Candidate gives a hoot how it all boils out in the end. They are both getting a lot of publicity out of it and in both cases, this kind of publicity doesn't hurt either party.