Notes From Underground - #48The Old Man and the ©

Copyright issues are something I have a lot of heavy opinions about, but not a lot of technical knowledge, which I hope I made obvious with last week's column. (My thanks to Sarah and Sean for weighing in and kicking the kuh-nowledge for me.) So, leave it to me to step right back into the thick of it this week thanks to none other than a little love fest between John McCain and Jackson Browne.

The Huffington Post reported that Jackson Browne has filed a lawsuit against the McCain campaign for using his song "Running on Empty" in an ad for Sen. McCain. The McCain campaign has clarified that it was the Ohio Republican Party, not the McCain campaign, that did this. Regardless, Browne's song was used for a political commercial, thereby implying his endorsement, without his permission.

Unlike the issues I covered last week, namely being free to cover a song without having to get permission to do it, this gets more at using someone's artistic creation as a whole. Just like with a television commercial, a political ad has to have permission to use another person's artistic work because, well, think about it - it implies consent for it to be there and it also implies support. Is Jackson Browne a McCain supporter? Not in the least and thus the lawsuit.

Ironically this doesn't seem to be the McCain campaign's first brush with copyright infringement. They also used a clip from Wayne's World for a video mocking Obama, only to have Mike Myers insist that it be taken down. Finally, a viral video (again mocking Obama) that was set to the tune of Frankie Valli's "Can't Take My Eyes Off You" has been pulled down by - wait for it - Warner Music Group, one of the great YouTube watchdogs (alongside NBC and, well, pretty much every big entertainment conglomo). Are people in this campaign really that clueless about those rules?

I have to stop myself for a minute and think about this objectively - after all my biggest chuckle is at watching people thwart the McCain campaign on these things - because my general tendency is to sympathize with samplers and culture mashers/grabbers. But then again those people aren't generally using whole products like this. The closest the McCain campaign came was with the clip from Wayne's World - the famous "we're not worthy!" quote. Does it really step over the line to use such a short, though recognizable, sample from an artistic work? I'm thinking about this outside the realm of the law for a minute.

What if I wanted to make a non-political, non-commercial video? Let's say, some video where I wanted the punchline to be the phrase "I'd buy that for a dollar!" When the punchline arrives, I use the audio and video clip of the man from the tv show in the film Robocop saying that line. While that sample is not my creative work, the re-contextualizing of it as part of a completely different piece of work, and the rest of that work, is my original creation. Am I crossing some sort of line to use it without permission?

While you mull over that, head on over to Aquarium Drunkard and check out my piece on "5:05", Paul Westerberg's song that, I argue, is one of the wittier and more fun responses to a copyright issue I've seen in some time. It's a good followup to last week's article.