Rage Against The Machione is the latest recording artist to demand that conservative radio host Rush Limbaugh not use their music on his show any longer. Rage joins Rush, Peter Gabriel and Kim Wilson of The Fabulous Thunderbirds releasing statements stating their distain for Limbaugh’s recent comments about Georgtown law student Sandra Fluke, who spoke up in Washington, D.C. for free contraception. When Limbaugh used Rage Against the Machine’s 1999 track ‘Sleep Now in the Fire,’ it didn’t take Morello long to go public via Twitter with a note of disapproval on behalf of the whole band:
To Rush Limbaugh: Hey Jackass, stop using our music on your racist, misogynist, right wing clown show. Sincerely, Rage Against The Machine
After learning that Limbaugh used their ‘The Spirit of Radio’ while demanding to see tapes of Fluke having sex, the attorney for the band Rush, Robert Farmer, has sent a cease-and-desist letter to Limbaugh’s show.
The letter declared the show to be “essentially a political broadcast” which, according to Farmer, is an “infringement of Rush’s copyrights and trademarks. The public performance of Rush’s music is not licensed for political purposes and any such use is in breach of public performance licenses and constitutes copyright infringement.”
Last week, Peter Gabriel was the first to demand Limbaugh not use his music on his show, saying in a statement on his website and facebook page:
“Peter was appalled to learn that his music was linked to Rush Limbaugh’s extraordinary attack on Sandra Fluke. It is obvious from anyone that knows Peter’s work that he would never approve such a use. He has asked his representatives to make sure his music is withdrawn and especially from these unfair aggressive and ignorant comments.”
There was an another rock act that demanded Limbaugh not use their music. Back n 1999, Chrissie Hynde complained about his use of the Pretenders hit, ‘My City Was Gone’ as his theme song. Hynde eventually did allow Limbaugh to play the song in exchange for a $100,000 donation to People for the Ethical Treatment of Animals and vocal support against chemical testing on animals.
Even though these artists are demanding Limbaugh not play their music, do they have legal presidence to expect any cease and desist order would be inforceable?
This from Rollingstone.com: In the clamor over Rush Limbaugh’s personal attacks on Georgetown law student Sandra Fluke, who recently testified at a Congressional hearing on contraception, musicians including Peter Gabriel and the band Rush have demanded that the conservative talk-show host stop playing their songs on his broadcast. Legally, the bands may not have a case, says attorney Larry Iser.
Iser has some experience with such disputes. In 2008, he went to court to stop the campaign of GOP presidential candidate John McCain from using “Running on Empty” in an ad attacking his opponent, Barack Obama. He also helped David Byrne force former Florida Governor Charlie Crist to stop running an attack ad using the Talking Heads song “Road to Nowhere.”
Limbaugh’s case is different, says the attorney. His clients sued for copyright infingement – their songs were used in audio-visual media, requiring licenses for the musical composition and the use of the recording under the terms of the Copyright Act. By contrast, radio networks are covered under blanket agreements for “public performance” of all songs in the publishing catalogs of ASCAP, BMI and, in the band Rush’s case, SESAC, the Society of European Stage Authors & Composers. The fact that Limbaugh’s show has a political agenda does not interfere with his right to play music, so long as it’s paid for, says Iser.
“What he did is in fact the essence of what ‘public performance’ is,” Iser says. Networks like Premiere, which syndicates The Rush Limbaugh Show, “all take public performance licenses for the performing societies . . . Artists who make money from public performance royalties don’t have the right, typically, to control who plays their songs. Once they choose to add their songs to the public performance catalog, they’re out there for anyone [with a licensing agreement] to use.”
However, explains Iser, if a cease-and-desist order in such cases would not likely be upheld in court, the band that issues it is effectively working the court of public opinion. The Fabulous Thunderbirds’ Kim Wilson is the latest performer to demand Limbaugh stop using his music. Yesterday he released a statement saying he would serve Limbaugh with a cease-and-desist; though Limbaugh has used the Thunderbirds’ song “Tuff Enuff” for years, the incident with Sandra Fluke was the last straw, the singer said.
“I don’t want people to think I’m affiliated in any way, shape or form with him,” Wilson said. “The message he promotes is something I’m totally against.”
That kind of public distancing is usually more than enough to shame the offending party into voluntarily dropping the song, says Iser. Just as Limbaugh ultimately has the right to say offensive things – and advertisers have the right, as dozens have done in the past few days, to withdraw their support of his show in consequence – artists can and should express their disapproval, he says.
“The Constitution is the Constitution, and thank goodness for it,” says Iser. “They do have a legal right to stand up and make as much noise as possible about how appalled they are.”
Despite appearances, Iser says, it is not only liberal songwriters balking at conservatives who use their songs. He points out that lawyers for Sam and Dave objcted when Obama used the soul duo’s song “Hold On I’m Comin'” in 2008 – not for political reasons, but because the campaign had not asked permission.