Tuesday, April 10, 2012

Newt Gingrich is a Survivor


See below for my original post on 80s-band Survivor's lawsuit against Newt Gingrich. Last Friday, the judge ruled on Survivor's motion to strike the affirmative defenses:
Plaintiff's motion to strike affirmative defenses [24] is granted in part and denied in part. Affirmative defenses 6, 7, 8, 9, 10, and 11 in the amended answer are stricken because they consist only of bare legal conclusions. Plaintiff's motion is denied as to affirmative defense 3, which is better dealt with based on a more complete factual record, and as to affirmative defense 13, which may be duplicative of defense 12, but if so plaintiff is not unduly prejudiced by that.
And the show goes on. However, now that Gingrich's campaign is more or less over, I suspect that the lawsuit will settle soon.

ORIGINAL POST (3/7/2012):

Mr. Gillette recently noted that Newt Gingrich is running for president but will never be president. Last night, however, Gingrich won the Republican primary in his home state of Georgia. Take that, Mr. Gillette!

Mr. Gillette also noted that 80s "one-hit wonder" band Survivor has sued the Gingrich campaign for copyright infringement for using "Eye of the Tiger" at campaign events. Usually, the candidates just roll over in these disputes and promise not to do it again. For example, former Florida Governor Charlie Crist practically got down on his knees to apologize to the Talking Heads' David Byrne for using "Road to Nowhere" without explicit permission.

But Newt is a fighter, apparently. He has not rolled over—at least not yet. Instead, he's filed an answer to the copyright infringement allegations:

Notably, the Answer includes 18 separate affirmative defenses. Most of them are obviously without merit and potentially frivolous. Indeed, just today the Survivor crew (Rude Music) filed a motion to strike most of the affirmative defenses, and the motion appears to be largely well-founded:

At least one of the defenses at least raises a potentially interesting issue: fair use. Also, although Survivor claims that Gingrich's use of the song was unauthorized and unlicensed, the Gingrich campaign alleges in affirmative defense number 14 that there was a license.

Whatever the merits of this particular case may be, it would be interesting if some day there was some actual litigation on whether artists have any moral or publicity right to prevent politicians from using their songs (even if the politicians have paid for the songs through a licensing clearinghouse such as ASCAP).

1 comment:

  1. Mr. Gingrich's win in Georgia does not alter the fact that he will never be our president. I will not be surprised if he also wins the primaries in Alabama and Mississippi next week. Those wins will also not alter the fact that Newt Gingrich will never be President of the United States of America.

    That said, I am curious as to your thoughts on the fair use affirmative defense.


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