Can Rush (the band) smack down Rush (the radio host)? Larry Iser, the lawyer who helped Jackson Browne settle with John McCain, explains
In a bit of amusing irony, Rush Limbaugh is again getting hammered for using a now-disgruntled artist's music without their permission, and that band is Rush! Yesterday, the trio's lawyer delivered (and publicized) a cease-and-desist letter to the producers of The Rush Limbaugh Show, which had been using Canadian group's songs during the host's broadcast, citing a slew of copyright and civil rights laws that prevented their works from being used for political purposes.
The news of Rush's outrage comes just a day after Peter Gabriel told the world he was dismayed at hearing his song "Sledgehammer" played during Limbaugh's recent rant. At first glance, it would seem that the host is about to be in a lot of legal trouble. But is he, really?
SPIN spoke with Larry Iser, a music copyright attorney based in Santa Monica, California who's worked with Jackson Browne on his 2008 lawsuit against John McCain (for using "Running on Empty" in his presidential campaign), and David Byrne on his claim against ex-Florida governor Charlie Crist (for using Talking Heads' "Road to Nowhere" in a Senate campaign ad). Browne's case set a precedent for artists seeking legal copyright protection against political broadcasts; both defendants settled out of court and were required to make public apologies for using the artists' copyrighted work without permission. Iser says, however, that this case is totally different, because, obviously, Limbaugh is not a political candidate — he's another performer, operating with the blanket public performance licenses Premiere Radio Networks have purchased legally from performance rights organizations, including Rush (the band)'s own SESAC.
"If Rush wants to pursue this legally, a case against Rush Limbaugh, an entertainer playing music on a radio broadcast, is going to be an uphill battle, because lawsuits are costly, and the results are uncertain," Iser explains. He says that it will be difficult for Rush (the band)'s lawyers to prove that Limbaugh's usage of the song was for political purposes and not entertainment, a line that gets blurrier and blurrier as social media and infotainment stars (Bill O'Reilly, Bill Maher, Jon Stewart, Steven Colbert, to name just a few) flourish. "The best way for artists like Rush and Peter Gabriel to prevail is to make these kinds of public denouncements, to tell fans that they in no way endorse the politics involved." He added that the radio network that distributes the Rush Limbaugh Show, Premiere Radio Networks, could avoid a further PR mess, this time with the music industry, by simply showing some professional courtesy and taking the unendorsed songs off the air.
Other artists who have been outraged by song usage this election season: K'Naan, who threatened Mitt Romney in February with legal action for borrowing "Wavin' Flag" and Survivor, who are suing Newt Gingrich for his use of "Eye of the Tiger." Sure, Ronald Reagan made an honest mistake back in 1984 by borrowing Bruce Springsteen's "Born in the U.S.A." for his own campaign, but come on, people, this is 2012. Has Obama's (copyright-friendly) Spotify playlist taught you nothing?