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.
Ultimately, the solution is simple. "There are so many songs," says Iser. If the artist takes issue, "go find a different one."