San Diego Attorney Blog

Last Thursday, February Second, on the Colbert Report Dave Bickler former singer of the group Survivor got payback against Newt Gingrich.  Newt Gingrich used the classic Rocky 3 song “Eye of The Tiger” in his campaign and in turn the band Survivor filed a lawsuit claiming among things copyright infringement.  To get their revenge Dave Bickler sang the classic song with new words, the words of Newt Gingrich (watch here).  Some people may wonder if Bickler’s singing would also constitute copyright infringement.  Lets take a look at both possible infringing uses.

First lets look at the copyright infringement claim brought by the band Survivor against Newt Gingrich.  I have not read the Complaint but the main issue is Newt Gingrich’s use of the song “Eye of the Tiger”.  A song or sound recording differs slightly then other copyrighted material because a song contains two separate copyrights, one in the publication (the musical arrangement and lyrics) and another copyright in the sound recording itself.  In most cases a Presidential Candidate will purchase a blanket license covering both copyrights to use music in their campaign strategy.

The problem that arises is that when this happens the general public may assume that the band themselves offered the license and support the presidential candidate, which is not the case and can lead to deceptive advertising.  The reason that Survivor may be bringing suit is just to show awareness that the band does not support the views of Newt Gingrich.  However, if Newt Gingrich did not obtain the proper licenses then there is a real case for copyright infringement.

This is an important lesson for musicians and it shows one of the recent trends of artists trying to retrieve there intellectual property rights so that they can have more control over who uses their copyrighted works.  Musicians need to set up safeguards and protect their interests if they care who uses their music in regards to advertising.

Finally is the issue as to whether Dave Bickler’s singing on the Colbert Report constitutes copyright infringement.  The book that Bickler used to sing from is a copyrightable subject matter under 17 U.S.C. Section 102.  However, in this case there is a good argument that Bickler’s use is a parody and a fair use defense.

A parody defense of fair use against copyright infringement has four main factors: (1) The purpose and character of the use, (2) Nature of the copyrighted work (3) Amount and substantiality of portion used, and (4) Effect on the potential market.

First, the purpose of the use was to mock Newt Gingrich and potentiality all of the politicians who use artists music without the consent of the artist themselves.  Also, Bickler has transformed the use by taking words from the book and making them fit into his own musical work.  Second, The nature of the work is for parody by portraying I don’t like how you used my work lets see how you like me using yours.  Third, the words used in the manner it was used did not convey the same message as the original book, and finally the new parody song is not going to take away financially from the people who would purchase the book, and therefore their is a good argument for fare use.

This Blog was written by Seneca Law Group Of Counsel Entertainment lawyer Chase Goodman. Its contents are his sole possession. This Blog is intended for informational purposes and social commentary only. It is not meant to be a legal authority. The laws constantly change and each persons circumstances are different.  If you have entertainment law questions or need an attorney please contact Seneca Law Group today at (619 630-8529 or e-mail us at info@senecalawgroup.com