Won’t Back Down

Five years ago, Lawrence Iser took his adult sons, Zach and Andy, to the National Archives in Washington, D.C., to make a point about Iser’s work as an intellectual property litigator, and theirs as, respectively, a music agent and a television script writer. 

“We were in town for a wedding,” says Iser, a managing partner at Kinsella Weitzman Iser Kump & Aldisert in Santa Monica. “And I wanted to show them the Constitution, which is just sitting there in a display case. So I go, ‘You guys are both in show business. I want to show you the language in the Constitution that lets you make a living.’ It’s Article I, Section VIII, and it gives to authors and inventors exclusive rights to their writings and inventions, and it is the foundation for the entertainment business. Record companies couldn’t own records, songwriters couldn’t own their own songs, and film studios couldn’t own the rights to the movies if it weren’t for the constitutional provision for copyright.” 

Their response wasn’t as enthusiastic as his. “Dad, can we go get lunch now?” he remembers them saying.

Iser’s enthusiasm for his work has led to copyright protection for such corporate clients as Mattel, SeaWorld and Univision, and musicians such as Michael Jackson and Crosby, Stills & Nash. 

It’s also led to a new cutting-edge area of law involving the unauthorized use of music by political candidates.

Copyright infringement in the political arena has been in the news since the 1980s, when Bruce Springsteen objected to Ronald Reagan’s appropriation of his song, “Born in the U.S.A.” John McCain’s use of “Barracuda” to introduce Sarah Palin at the Republican National Convention in 2008 drew a cease-and-desist request from Heart; and the same year, Iser asked McCain and the Ohio Republican party, who were using Jackson Browne’s “Running On Empty” in a political ad that ran on YouTube, to take down the ad and issue an apology.

Instead of an apology, they got an insult. “Their response was, ‘We don’t know why Jackson Browne is upset with us, we’ve given him more airplay time than he’s had in years,’” remembers Iser. “This is the Ohio Republican party, and Jackson that year had been installed in the Rock & Roll Hall of Fame in Cleveland.”

They wound up suing not only the Ohio Republican party, but the RNC and John McCain personally. “[The defendants] hired three different law firms to file every motion they could think of, and we beat them all,” Iser says. “After we won all those motions, they came back and settled.”

Iser believes that Browne v. McCain was the first time a recording artist ever filed suit against a politician for using a song without permission. “It was a wake-up call,” he says, “and it got a lot of attention.”

Perhaps not enough. In 2010, Florida Gov. Charlie Crist used the Talking Heads’ “Road To Nowhere” in a campaign spot without permission or license. That suit ended with an apology to songwriter David Byrne, issued by Crist via YouTube, where the Crist ad originated.

“David Byrne and Jackson Browne are both very peaceful guys,” says Iser, “but they were both profoundly upset that their creations, their music, their image, their endorsement, was taken without their permission.” 

Endorsement is key. “You’ve got Jackson Browne, who appears to be endorsing John McCain,” Iser says. “You’ve got David Byrne, who appears to be endorsing Charlie Crist. That’s a false endorsement claim under Section 43(a) of the Lanham Act.” 

One politician who’s gotten away with it so far? Donald Trump, who plays the Rolling Stones’ “You Can’t Always Get What You Want” as his intro and outro music at campaign rallies and beyond—legally. It’s because it’s not part of an ad; it’s part of an event. 

“Every venue in this country is going to be licensed by ASCAP or BMI,” says Iser. “That means when a band comes through, when the Ice Capades come through, they don’t have to go out and separately license that music because ASCAP and BMI charges the venue for the use of the catalog. So, unfortunately, we can’t do anything to stop it. It’s really bad form, but look who we’re dealing with, and let me just say this: It was understandable to use it during the campaign, but to use it now, like, ‘Sorry folks, you can’t always get what you want, you got me,’ to me it seems a little counter-intuitive.”

Iser, of course, will stand watch over the 2018 midterms.

“There’s something about Republican candidates in particular wanting to play the music that doesn’t necessarily support them, to try and garner favor, and I expect in the next election cycle it will continue,” Iser says. “So we’ll get busy again protecting people who write copyrighted music. … That’s what we do.”