Archive for the ‘music’ tag

Just a Playlist… or Something More?

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Music streaming service, Spotify, has yet again found itself at odds with a creator in the music industry. This time around, the disagreement centers on a more novel question: Does a compilation constitute copyrightable intellectual property? According to U.K. based dance-music record label, Ministry of Sound, it does. Ministry of Sound, or MoS, has recently filed a lawsuit in the U.K. High Court against Spotify, claiming copyright infringement. MoS produces compilation albums comprised of songs which the label has not itself created, but has selected and placed in a purposeful, specific order on the album. The record label’s “beef” with Spotify is grounded in the fact that the streaming service currently allows users to create playlists that essentially emulate the compilation albums. Further irritating the label, some users even go as far as to title those playlists “Ministry of Sound.” To be clear, the users are not illegally downloading the MoS albums; they are instead legally listening to the individual tracks through the streaming service and replicating MoS’ order of the tracks in their own playlists. After pleading with Spotify to remove these playlists since last year to no avail, MoS finally had enough and essentially said, “see you in court.” This case will turn on the issue of whether or not the order/structure of the content on MoS’ albums is copyrightable.

But what are the odds that a court will actually determine that the compilation albums (in terms of their ordering of songs) constitute copyrightable material? The claim MoS is making is certainly deserving of at least some consideration. Factually, we can see how the artistic compilation of music is the result of a unique, creative process. This process may even require extensive research and hours of dedication to deriving the perfect order. For those reasons, there is an argument to be made that the end result of the process is an original work. Where MoS will likely find its greatest struggle in this lawsuit, however, is in showing that its compilation albums constitute a work original enough to be worthy of copyright protection. Since the filing of the lawsuit, many comments on the relevant articles and blog posts have shown disdain for the idea that taking music that someone else created, and placing it in a specific order on a playlist, could constitute anything that could even remotely be considered copyrightable, or truly original. When MoS’ albums are equated with mere playlists (which are viewed as lists that require no skill or real effort to produce) the future for MoS in this lawsuit against Spotify doesn’t look so bright.

While the public consensus seems to be that MoS’ claim simply does not hold water, the worlds of music, technology, and copyright should certainly keep a close eye on this case, as the possibility exists that the UK court could side with MoS. This is an issue of copyright definition and protection that the courts have not yet faced (MoS is the first label to make this type of claim), and it could wind up being a real game changer for the industries involved. If MoS wins, this could strike a major blow to the business model of Spotify and other music streaming services that allow users to create playlists, as playlists are becoming an increasingly prevalent and important form of music consumption. If MoS loses, the compilation sales business model for MoS may prove unsustainable—will people continue buying the compilation albums when they can just recreate the same playlist for free on Spotify? Additionally, MoS’ claim could be the catalyst for similar claims to be brought in US courts.

Through these cases, law and technology continue to shape the ways in which we view art and originality. In today’s world, where will the court draw the line of what is and is not art in the sense of copyright?

To find out, we’ll just have to stay tuned.

Composers of Hit Song File Declaratory Judgment Action

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Faced with the prospect of copyright infringement lawsuits from Bridgeport Music, Inc. (“Bridgeport”) and Marvin Gaye’s heirs (the “Heirs”), the composers of the multinational hit song “Blurred Lines” filed a declaratory judgment action against Bridgeport and the Heirs in the United States District Court for the Central District of California on August 15, 2013.  Through this action, the composers, namely Pharrell Williams, Robin Thicke, and Clifford Harris, Jr., request that the court declare that “Blurred Lines” does not infringe Bridgeport’s composition “Sexy Ways” or Gaye’s composition “Got to Give It Up.”

The lawsuit alleges that Bridgeport and the Heirs have continually insisted that “Blurred Lines” infringes their respective compositions and have stated an intention to file a lawsuit for copyright infringement if not compensated.   The composers, however, claim that “[t]here are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements.”  Instead, according to the suit, the composers “created a hit and did it without copying anyone else’s composition.”

Generally, to establish a claim for copyright infringement a plaintiff must establish:  (1) copying of a prior copyrighted work; and (2) a substantial similarity to the prior copyrighted work sufficient to constitute unlawful appropriation.  A plaintiff can generally demonstrate the first element based upon evidence of access to the copyrighted work and similarity.  Here, it does not seem to be disputed that the composers had access to “Sexy Ways” or “Got to Give It Up.”  Indeed, according to the suit, the “intent in producing ‘Blurred Lines’ was to evoke an era.”  The question remains, however, whether the similarities between “Blurred Lines” and the prior works are sufficient to demonstrate “copying” and “substantial similarity.”

To date, neither Bridgeport nor the Heirs have filed an answer to the composers’ complaint.

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September 29th, 2013 at 10:47 am

Songkick introduces Detour, challenges the live-music business status quo

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The Internet has long been a place for fans to gather and discuss the pop culture they love. In recent years, however, the internet has begun to take that love to the next level, allowing fans to actively contribute to projects they find intriguing.  The most prominent website in this newly emerging market is obviously Kickstarter, yet more sites are beginning to adopt its model and diversify its applications. Perhaps the newest development comes from Songkick, which is attempting to apply the Kickstarter ethos to live music.

Since its founding in 2007,  Songkick has been devoted to providing its users with alerts about upcoming shows by their favorite acts in any given area. The site aims to provide a forum for live music lovers to gather, and a way for them to keep up to date on when they may have the chance to see their favorite bands again. The site began by addressing fans’ frustration at missing out on a great show, but it has now evolved to begin dealing with a similar frustration: finding out a band you love isn’t coming to a venue near you.

Detour, the site’s ever-growing solution to that problem, allows fans to place advance orders for tickets to a theoretical concert in their area, which they will only be charged for if the concert takes place. The process, called crowdfunding, allows fans raise money to bring their favorite bands to town and mitigates the risk artists take when traveling to new places.  The system lets fans to convince their favorite bands (and those artists’ booking agents) that there is not only a fan base in an area, but a base that is willing to buy tickets if the artist comes to town. After testing the system with smaller artists, like Hot Chip and Tycho, booking single venues through Detour, the site is now preparing to take the next step, by working with Andrew Bird to plan his entire tour of South America.

Bird plans to do a six-city tour of the continent in February, and Detour is facilitating. Twelve cities have been chosen as contenders, among them large metropolitan areas like Rio de Janeiro and Sao Paulo, and smaller outlets like Santo Domingo and Caracas, and the first six cities to sell 250 provisional tickets will get the dates. If successful, the tour will be the largest fan-funded music tour in history.

Co-founder and CEO Ian Hogarth insists the site aims to work within the existing framework, alongside bands, managers, promoters, and booking agents, yet he points out that “”If you think about recorded music over the last 20 years, we’ve seen MP3s and Napster; iTunes and the iPod; YouTube making Gangnam style an overnight hit and services like Spotify and Soundcloud — there has been an incredible amount of disruption. Meanwhile very little has changed in live music.”

With every technological progression, legal questions inevitably follow. It is too early yet to accurately predict the problems that Detour may run into, though challenging the status quo of the music business, especially when it comes to the live music booking framework, tends to be met with resistance from those the current system benefits. If Detour is successful, it may be the beginning of a new world order for live music, where fans have greater control over who they see and where concerts take place. By seizing the possibilities of modern technology, Detour may be forging a new path for the planning and execution of concert tours.

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October 31st, 2012 at 7:44 am

Here’s Some Food for Thought…

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Have you ever considered what the prices on a restaurant menu cover? Undoubtedly the prices cover the cost of food, the services of the chefs, waiters, busboys, and even the rent and furniture. But have you ever thought that these prices might cover the background music in the restaurant too?

In Title 17 of the United States Code, Congress expressly conferred to copyright holders – composers, songwriters, lyricists, and publishers – the exclusive right to perform or authorize the performance of their works publicly.  The statute expressly defines both “perform” and “in public”.  To “perform” a work is “to recite, render, play, dance, or act it, either directly or by means of any device or process.”  The statute characterizes “in public” as either “(1) to perform or display [a work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” or “(2) to transmit or otherwise communicate a performance . . . by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  So, under these broad definitions, just playing a CD in a restaurant constitutes a “public performance” of those works.

Although the statute does include certain enumerated exceptions, an infringer could otherwise be liable for severe financial sanctions: statutory damages currently range from $750 to $30,000 per copyrighted work, or for willful infringement, the court may increase the award to $150,000.

Just last year, the Eastern District of North Carolina found Raleigh’s Fosters American Grille liable for statutory damages in the amount of $30,450 for playing only four unlicensed copyrighted songs – and awarded $10,742.25 in attorney’s fees.  In 2008, the Eastern District of Pennsylvania found Schwenksville’s Crazy Carol’s Sports Bar liable for statutory damages in the amount of $16,000 for playing only eight unlicensed copyrighted songs – and awarded $4,830 in attorney’s fees.  Law’s Lunch & Dinner (Riverside, CA), The Vibe (Riverside, CA), Mad Dogs & Englishmen (Tampa, FL), Empire Dine & Dance (Portland, ME), Doug’s Burger Bar (Imperial, MO), Foxy Lady Club (Raleigh, NC), Vanishing Point Bar and Grill, (Mt. Airy, NC) Ron’s Landing (Hampton, NH), Bolero Resort & Conference Center (Wildwood, NJ), and Bacchus (New Paltz, NY) are but ten of the thousands of other restaurants in this country that have been sued for illegally playing songs without proper licensing.

A fine to that tune might seem rather severe, but our law nonetheless protects owners of musical works.  It assumes that the owner of a musical work has the right to be paid for use of his property.  Back in 1917, Justice Oliver Wendell Holmes, Jr. wrote that musical performances in restaurants are not “eleemosynary” but rather, “are part of a total for which the public pays” Herbert v. Shanley, 242 U.S. 591, 594 (1917).  While “music is not the sole object [of a patron’s visit to a restaurant],” he continued, “neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent music.”  Justice Holmes believed that without pay, music would simply “be given up.”  He thus found it necessary to incentivize the production and dissemination of new works in order to serve the Constitution’s Congressional mandate: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” No doubt, Justice Holmes saw the copyright owner’s exclusive right to perform or authorize the performance of their works publicly as an incentive that was indispensible to this end.

What do you think? Should restaurateurs have to pay just for playing their iPods at their restaurants?

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May 30th, 2012 at 12:00 pm

Sony’s $8M Settlement and the Future of Digital Royalties

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Wrapping up six years of heated litigation, Sony offered an $8 million settlement this week in a class action lawsuit led by The Allman Brothers and Cheap Trick, accusing Sony of underpaying the bands’ digital record royalties.  Originally filed back in 2006, this class action forged the way for numerous artists to sue their labels for counting digital downloads as “sales” rather than “licenses.”  Last year, Eminem’s producers won a similar suit against Universal.  See F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010).  At the crux of such disputes lies the discrepancy between sale and license royalty rates: royalties for phonorecord sales typically fall between 8 and 20 percent, whereas a 50 percent royalty rate remains the industry standard for licenses.

As the Amended Class Action Complaint alleges, Sony’s failure to properly account to Plaintiffs for recording royalties of their recordings sold by “Music Download Providers” and “Ringtone Providers” through digital distribution has resulted in a gross underpayment of royalties to Plaintiffs.  See Allman v. Sony BMG Music Entm’t, No. 06-CV-3252 (GBD), 2008 WL 2307598 (S.D.N.Y. July 10, 2006).  By treating digital downloads like traditional record sales, Sony has successfully triggered a lower-paying royalty deal for its artists.  The Complaint charts out the differences between the two royalty options, highlighting that of the 99 cents charged to the consumer by Apple for each download through iTunes, Plaintiffs receive approximately 4.25 cents.  Similarly, from each $1 to $1.50 that Sony receives for a ringtone, Plaintiffs receive only 8.3 cents.  Plaintiffs argue that these numbers stand in stark contrast to the revenue Plaintiffs would receive if Sony licensed its sound recordings to Music Download Providers, since the artists’ Recording Agreement requires Sony to pay its artists 50% of all net licensing receipts received, when such sound recordings have been licensed to third parties.

However, in a brief and pointed opinion, the district court judge determined based on the contractual language that there is “no basis from which it can reasonably be inferred that payment pursuant to the master recording lease provision is applicable.”  Allman v. Sony BMG Music Entm’t, 06-CV-3252 (GBD), 2008 WL 2477465, at *1 (S.D.N.Y. June 18, 2008).  Since the master recording lease provision (which would entitle Plaintiffs to 50% of net receipts as a royalty) necessarily required proof that the master recordings were in fact leased to the Music Download Providers – proof not provided by Plaintiffs – that provision did not apply.  Instead, the district court held that the royalty provisions applicable to “Sales of Phonograph Records” reigned supreme, which included master recordings sold by Defendant or its licensees through normal retail channels, such as iTunes.  Since the parties stipulated that digital music files fell within the contractual definition of “phonograph records,” the iTunes downloads constituted sales of the digital sound recordings rather than licenses and thus justified the lower artist royalty rate.

Now, almost four years later, the Settlement directs that $7.65 million (less attorneys’ fees) will go to class members who sold at least 28,500 downloads on iTunes, while the remaining $300,000 will be paid to class members equally, per capita, with sales fewer than 28,500 total downloads.

Despite being premised primarily on contractual interpretation, Allman nonetheless raises timely, compelling questions pertaining to the disconnect between emerging digital technologies and frequently outdated contracts.  For example, one background explanation for the prevailing lower royalty rate in Allman may be that the lead Plaintiffs’ record contracts came into existence before the advent of digital music sales online, and did not adequately predict or account for future methods of artist payments.  In any case, the district court’s opinion makes clear that “the emergence of a new era of digital sound recordings does not afford plaintiffs the right, under the guise of contract interpretation, to rewrite the terms of the contracts in order to secure a more favorable, or what they consider to be more equitable, royalty formula.”  See Allman, 2008 WL 2477465, at *2.  Depending on the exact wording of other artist contracts, then, we can expect to see an increase in this type of litigation.

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March 22nd, 2012 at 1:33 pm

The “Trickle Down Theory” of Music Streaming Revenue: Is Legal Intervention Necessary for Artist Payout?


How much do streaming services pay artists?  The question has been asked with increasing frequency of online services from Spotify to Rhapsody and even iTunes, yet is often met by disparate – and thus unenlightening – figures, or naïveté.  Illustrating this latter occurrence with nothing but the best intentions, Rhapsody president Jon Irwin stated in an op-ed for Billboard last week that the company has paid out “hundreds of millions” to rights holders since 2001, and that he “trust[s] that this royalty revenue is flowing to artists.”

The accuracy of Irwin’s statement – and the validity of this “trickle down” theory of streaming royalties – may quickly be called into doubt upon the realization that streaming services such as Spotify and Rhapsody are only contractually obligated to pay whoever owns the music, and not necessarily the artists themselves.  For this reason, Glenn Peoples of Billboard posits that this post’s initial inquiry misses the target.  Streaming services need only concern themselves with making sure the appropriate rights holders are paid, and given the ubiquitous inequities in bargaining power between most artists and their labels, it is far more likely for a label to own the underlying copyrights to the master recordings than the artist.  When this is the case, then what Spotify and similar services must pay to the artist is entirely between the artist and his or her label, and artist recording agreements vary widely from deal to deal.

While there is nothing inherently illegal about such an agreement (such is the practice in the music industry), the position of labels as intermediaries between streaming services and artists makes it difficult to obtain any sort of transparency regarding the actual royalties streamed down from the services to the artists.  Due to increasing worries about the amounts being paid out by subscription services – and to whom – recent discussions have ignored the steadfast existence of the industry’s financial hierarchy.  Perhaps that is a good thing, incentivizing an artist or manager who is unsatisfied with the amount of streaming royalties received to directly approach the label or distributor responsible for negotiating the deal with the streaming service.  Or perhaps we need better laws and business models in place to protect uneducated artists and those with particularly weak bargaining power from having to negotiate those rates independently (and probably unsuccessfully).

Coldplay’s recent refusal to license its newly released album, Mylo Xyloto, to any on-demand streaming service speaks to the concern that platforms like Spotify may not provide a financial benefit to the actual artists.  Evidence that the free model of Spotify and other similar streaming services may be diverting potential customers away from paid download services like iTunes makes Coldplay’s decision to withhold content even more enlightening.  Perhaps larger artists like Coldplay risk losing more income from streaming services than do smaller artists, who would not experience the same volume of paid downloads.  In fact, an impressive 40% of Coldplay’s early Mylo Xyloto sales came from paid downloads.  To put it simply, there is no way Spotify royalty income will ever come close to the amount a big act like Coldplay could make by selling albums and downloads.  A study conducted last year reveals that in order for an artist to earn the federal monthly minimum wage of $1,160, their fans must stream a staggering 4,053,100 plays per month (versus “only” 12,399 digital downloads per month).

The disparity between per-stream payouts and those for actual digital downloads raises the question: is legal intervention necessary to protect artists from manipulative labels pocketing their streaming royalties?  Placing the burden of finding a solution to this nearly impossible dilemma  on streaming services unfairly attacks companies trying to run legitimate business operations that simply lack the expertise to tackle this issue, not to mention that most services are private companies with no obligation to report sensitive financial details to the public.  Could artist and continuing legal education seminars effectively help artists and managers better negotiate terms in their recording and publishing agreements and take full advantage of revenue streams from constantly evolving technologies?  Should we ask our legislators to draft more effective anti-piracy laws and/or increase the statutory royalty rate?  Anti-piracy laws alone will not directly solve the problem, however, since many former P2P downloaders may instead turn to free streaming.  The solution will require an ongoing and candid dialogue between artists, labels, distributors, and legislatures alike.

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October 30th, 2011 at 8:44 pm

UMG, A Promising But Unfinished Step

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The recent UMG v. Augusto decision by the Ninth Circuit Court of Appeals provided consumer copyright advocates with plenty of reasons to celebrate. But before popping the last bottle of champagne, it would be prudent to wait and see the extent to which, if at all, the court uses UMG to limit Vernor v. Autodesk’s effect.

In UMG, the court held record companies that mail promotional CDs to radio stations, even if labeled “Promotional Use Only—Not for Sale,”
 may not retain ownership or licensing rights to those CDs without first requiring the recipient to agree to any use conditions. Consequently, the recipient of the CDs retains unfettered ownership, and thus may successfully invoke the “First Sale” doctrine in response to a copyright infringement claim, should the recipient later decide to sell the goods.

This decision is receiving praise by music lovers because it is said to free promotional CDs from the shadow of copyright infringement claims. Sounds great for consumers.

Unfortunately, lost in the celebration is the Ninth Circuit’s prior decision in Vernor v. Autodesk, which has the potential to limit UMG’s effect.

Vernor held, inter alia, that the recipient of the copyrighted material, in this case software, obtains a mere license if the the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” Vernor found that the defendant received only a license, thus he never obtained ownership, precluding him from invoking the “First Sale” doctrine. Consequently, upon selling the CDs, the defendant committed copyright infringement.

UMG didn’t overrule Vernor; rather it distinguished the two cases based on UMG’s method of distribution conveyed ownership to its recipients. UMG gave the material away unconditionally, in such a way that constituted a gift, whereas Vernor transferred the property subject to specific conditions, specifically that the user not resell the software. As a result, in UMG, the owner received ownership of the goods while in Vernor the recipient received only a license to use the goods.

Accordingly, we should wait and see how the Ninth Circuit interprets the two holdings, focusing primarily on the relative scope of each decision. For copyright consumers, while UMG is a step in the right direction, a broad interpretation of Vernor could undermine the momentum UMG generated.

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January 18th, 2011 at 1:29 pm

1,200 TV Stations Sue BMI Over Music License Fees

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The topic of music royalties has come up time and again in 2009, from the introduction of the Performance Rights Act, currently making its way through Congress, to various digital performance royalty rate disputes, from Internet broadcasts to satellite radio.

To end the year in music royalties and law, and to help open up 2010, on the week of December 21, 2009 the owners of about 1,200 “local” television stations filed a lawsuit against performing rights organization Broadcast Music, Inc. (BMI) seeking “lower broadcast fees to reflect declining television viewership and advertising revenue,” according to a report from music industry news publication Billboard.  The suit, WPIX v. BMI, was filed in U.S. District Court, Southern District of New York.

The plaintiffs, who have periodically renegotiated the rates with BMI, now state that a federal judge should “set reasonable fees and terms” because of a decline in television viewership and advertising revenue, according to Businessweek.  According to the Businessweek article, the “television industry will end the year with lower-than- expected revenue of $15.6 billion, a 22.4 percent decline from 2008.”

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December 31st, 2009 at 4:46 pm

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Failing to Twitter: Assault and Criminal Nuisance?

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When teen pop star Justin Bieber‘s signing became a riot of teens on Friday around 2:30pm, police were called in to control the crowd. Unable to quickly contain the situation, they asked his label‘s VP, James A. Roppo, to send out a tweet to cancel the event and disperse the crowd.  When Mr. Roppo failed to do so, they took him into custody, reasoning that “he put lives in danger and the public at risk.”  At his arraignment on Saturday, Mr. Roppo pled not guilty to the charges of felony assault, endangering the welfare of a child, obstruction of governmental administration, reckless endangerment and criminal nuisance.

(Curiously enough, Justin’s Twitter page has a tweet at 4:30pm finally asking his fans to leave the event.)

[Via Gizmodo]

[Video clips]

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November 24th, 2009 at 12:50 pm

Jackson Browne v. John McCain: Copyright Lawsuit Settled, Case Dismissed

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The lawsuit between rock artist Jackson Browne and Senator John McCain and the Republican Party was recently settled, and ordered dismissed on August 4, 2009, almost a year after the suit was filed by Browne.

Browne filed a lawsuit against McCain, the Republican National Committee, and the Ohio Republican Party over the unauthorized usage of Browne’s signature song “Running on Empty” in a commercial criticizing the energy policy of then-Democratic Presidential candidate Barack Obama.  The commercial, which aired on television and, featured parts of the sound recording of “Running on Empty” throughout.

The causes of action listed in Browne’s complaint, filed in U.S. District Court in California, included copyright infringement, trademark infringement, and violation of the California common law right of publicity.  The defendants’ motion to dismiss, relied, amongst other things, on a fair use defense against Browne’s copyright claims and a political speech exemption against the trademark claim.  The motion to dismiss was ultimately denied.

The lawsuit brought to light the clash between intellectual property rights and fair use as well as the First Amendment in the context of political speech, as political campaigns turn more and more to popular culture references in the media to reach out to voters.  McCain was also opposed by artists for his campaign’s use of popular music from the Foo Fighters, Heart, and John Mellencamp.  Even Obama ran into trouble during his campaign, when soul legend Sam Moore (of “Soul Man” fame) asked Obama to stop using one of his songs.

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August 7th, 2009 at 11:02 am