Can Rush, Peter Gabriel Legally Order Limbaugh to Cease Using Their Songs?

Attorney: Technically, no, but they can use court of public opinion

http://www.rollingstone.com/music/news/can-rush-peter-gabriel-legally-order-limbaugh-to-cease-using-their-songs-20120308



By
James Sullivan
March 8, 2012 3:15 PM ET

In the clamor over Rush Limbaugh's personal attacks on Georgetown law student Sandra Fluke, who recently testified at a Congressional hearing on contraception, musicians including Peter Gabriel and the band Rush have demanded that the conservative talk-show host stop playing their songs on his broadcast. Legally, the bands may not have a case, says attorney Larry Iser.

Iser has some experience with such disputes. In 2008, he went to court to stop the campaign of GOP presidential candidate John McCain from using "Running on Empty" in an ad attacking his opponent, Barack Obama. He also helped David Byrne force former Florida Governor Charlie Crist to stop running an attack ad using the Talking Heads song "Road to Nowhere."

Limbaugh's case is different, says the attorney. His clients sued for copyright infingement – their songs were used in audio-visual media, requiring licenses for the musical composition and the use of the recording under the terms of the Copyright Act. By contrast, radio networks are covered under blanket agreements for "public performance" of all songs in the publishing catalogs of ASCAP, BMI and, in the band Rush's case, SESAC, the Society of European Stage Authors & Composers. The fact that Limbaugh's show has a political agenda does not interfere with his right to play music, so long as it's paid for, says Iser.

"What he did is in fact the essence of what 'public performance' is," Iser says. Networks like Premiere, which syndicates The Rush Limbaugh Show, "all take public performance licenses for the performing societies . . . Artists who make money from public performance royalties don't have the right, typically, to control who plays their songs. Once they choose to add their songs to the public performance catalog, they're out there for anyone (with a licensing agreement) to use."