April 13, 2011 6:33 PM

Kinsella Weitzman Settles "Road to Nowhere" Infringement Case

Posted by Drew Combs

Former Florida governor Charlie Crist is the latest politician to apologize for the unauthorized use of a copyrighted song.

On Tuesday, Crist admitted that his U.S. Senate campaign's use of the Talking Heads song "Road to Nowhere" in advertisements posted on YouTube and the campaign Web site during the 2010 political contest was, as he put it, "wrong."

The campaign ads attacked Marco Rubio, one of Crist's opponents and, ultimately, the victor in the Senate race.

Crist's apology, directed at Talking Heads frontman David Byrne, stands out for the medium in which it was delivered: a YouTube video. In the clip, which runs 1 minute and 37 seconds, Crist not only apologizes for using the song but expresses deep respect for Byrne's refusal to allow his songs to be used for advertisements of any kind.

The video settles a May 2010 lawsuit filed by Byrne against Crist and his senatorial campaign which sought $1 million in damages. The parties have declined to disclose the details of the settlement, which was filed in federal district court in Florida, but Byrne's attorneys have said the videotaped apology is a key aspect of the agreement.

"The video was done at [Byrne’s] request," says Kinsella Weitzman Iser Kump & Aldisert attorney Gregory Gabriel, who represented the artist along with colleague and name partner Lawrence Iser. "The original ad ran on YouTube and he thought it was fair to request that the apology run in the same manner as the ad."

In the video, Crist also pledges to obtain permission before using any copyrighted work in future political campaigns. Crist initially was represented by Greenberg Traurig; he later moved the case to Morgan & Morgan, the plaintiffs firm he joined in January 2011.

This is the second such lawsuit handled by the Santa Monica, California-based Kinsella Weitzman. In 2008 the firm signed on to represent singer Jackson Browne in a lawsuit against Republican presidential candidate John McCain, the Republican National Committee, and the Ohio Republican party for their unauthorized use of Brown's classic "Running on Empty" in an ad mocking then presidential candidate Barack Obama. (Click here for The Am Law Daily's Q&A with Iser about that lawsuit.) The parties reached a settlement in July 2009 that included an apology from McCain.

Kinsella Weitzman's work for Jackson Browne led David Byrne's manager to seek out the firm in 2010 for possible action against Crist.

Gabriel contends the copyright violations by political campaigns are the result of multiple factors, including the hectic and sometimes decentralized nature of the campaigns and the historical unwillingness of artists to assert their right to sue in these situations.

"In campaigns a lot of power is given to volunteers and [staff]," he says. "Someone comes up with an idea to use a popular song to promote the campaign or attack the other guy, but no one thinks about the copyright issues."

Gabriel points out that Rubio's campaign used the Steve Miller Band hit "Take the Money and Run" to criticize Crist, though Rubio's campaign did not face a lawsuit over its usage.

Kinsella's Iser, in a fall 2010 article from The American Lawyer's Intellectual Property Supplement, said the cost of litigation might deter artists from filing lawsuits. "Litigation is so expensive that it's not a good way to make money--you make money by licensing your work," he said.

But it seems litigation can be an effective way for artists to make a point.

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