At a campaign rally in Pennsylvania yesterday, Representative Paul Ryan used Twisted Sister’s 1984 anthem “We’re Not Gonna Take It” as his walk-on (or perhaps walk-off) music. For those who don’t know or remember it, the song is a timeless expression of core Republican values (e.g., “your life is trite and jaded/boring and confiscated/if that’s your best, your best won’t do”). The song’s composer, Twisted Sister frontman, host of radio’s “House of Hair,” and genuine music business nice guy and wit, Daniel “Dee” Snider, objected: “I emphatically denounce Paul Ryan’s use of my band Twisted Sister’s song, ‘We’re Not Gonna Take It,’ in any capacity. There is almost nothing he stands for that I agree with except the use of the P90X.”
The story initially caught my attention because I recently represented Snider’s interests in a copyright infringement case involving “We’re Not Gonna Take It” (along with “I Wanna Rock” and “Burn in Hell”). More generally, though, stories like this have become increasingly commonplace as, mostly Republican, candidates have taken to appropriating music from the other side of the culture wars, perhaps as a means of deflecting attention from the revanchist social policies they actually espouse. Do Snider and other victims of this form of cognitive dissonance have any claim under copyright law?
There seem to be two rights implicated here, if not actually infringed. First, there is Snider’s exclusive right of public performance of his composition. I think there is no doubt that playing the recording at a campaign rally is a public performance, and I don’t see any viable “fair use” defense. The issue then is whether the venue at which the rally takes place holds a blanket license from a performing rights organization (in Snider’s case, SESAC) covering the song at issue. In a rally held in a public auditorium or at a university, the likelihood is that the performance is licensed. In a rally held in parking lot or open field, the use of the song is very likely unlicensed and infringing.
There is also the copyright in the sound recording to be considered (although at this point it is unlikely that Snider or his bandmates, as opposed to the record label, control that copyright). Here the claim would fail as a result of a historical quirk of copyright law, which grants no general right of exclusive public performance of sound recordings. Sound recordings, in fact, had no copyright protection at all under federal copyright law until the 1970s, and at that point broadcast and other existing industries that had long used recorded music were protected against claims for performance royalties from record labels and artists. As the law stands now, only public performances “by means of a digital audio transmission” infringe the copyright in a sound recording.
As a result, Snider, Tom Morello of Rage Against the Machine , and others will largely have to rely upon their First Amendment remedies.