Protecting (Intellectual) Property

The Republican Party of Texas has been getting a lot of free press for its new online attack ad about Houston Mayor Bill White. One problem: There's a very good chance the ad may violate copyright law.

The ad, entitled Bill White: Too Liberal for Texas, features a litany of claims about White, accompanied by about 90 seconds of "The Great Pretender," performed by The Platters and written by their manager, Buck Ram.

Now this was a 1955 recording: Ram only died in 1991, and the band is still touring (actually, due to complicated legal wranglings, there are multiple versions of the band). So how did the RPT get approval to use the 351st greatest song of all time? Talking to Republican Party of Texas communications director Bryan Preston this morning, he said that permission isn't needed because the ad is "covered under fair use and political parody."

Well, here are the problems with that explanation.

One, they simply used the entire song, which goes well beyond any standard for fair use and would therefore require agreement from the copyright holder – which Preston confirmed they didn't have. This could also be a violation of The Platters' rights under the Lanham Act, which protects people against false endorsements.

Two, the parody question. Parody is a pretty powerful defense (just ask Larry Flynt and the publishers of Going Rouge) but it only applies to whatever it is that you're parodying. In this case, it's clearly White. So unless the Texas GOP has some weird feud with The Platters that they're not revealing, that dog won't hunt either.

Of course, without a complaint from the copyright holder there's no case, but this isn't the first time the GOP has played fast and loose with someone else's music in a campaign. Only last year, Sen. John McCain had to apologize publicly to Jackson Browne for using "Running on Empty" without permission. Ya woulda thought that famous incident would be enough of a shot across the bows, but since Heart had to take the McCain/Palin '08 campaign to task for misusing "Barracuda" even after Ronald Reagan got schooled by Bruce Springsteen for stealing "Born in the USA" in the 1984 election, maybe not.