Charlie Crist blames consultants for campaign ad lawsuitWed Aug 04, 2010 @ 11:28AM PST
By Eriq Gardner
EXCLUSIVE: Court papers reveal that Florida governor Charlie Crist is blaming media consultants for his senatorial campaign's use of the Talking Heads song "Road to Nowhere," which led to a messy lawsuit.
In May, Talking Heads singer David Byrne sued Crist and his campaign for using the song without permission or proper license in an ad posted on YouTube. Byrne's lawsuit followed a rash of other legal actions where musicians targeted politicians — particularly Republicans — for copyright infringement.
Musicians have gained an upper-hand in these battles. Last July, John McCain settled a case with Jackson Browne and was forced to apologize to the singer for using "Running on Empty" in a campaign video. In June, a judge ruled that California senatorial candidate Chuck DeVore infringed the copyright on two of Don Henley's songs.
In both those cases, as well as others, the defendants attempted to assert a "fair use" defense based on the assumption that politicians should be free to use snippets of songs or underlying material to make political free speech.
Perhaps because the defense has found little traction in courts, Crist is not asserting "fair use," instead arguing that the governor didn't know the song hadn't been cleared.
Crist's argument is found in court papers filed Monday in opposition to Byrne's lawsuit in Florida district court.
In those papers, Byrne says that he retained the Stevens and Schriefer Group, a media consultancy firm, to produce an informational message informing voters about his rival Marco Rubio.
Crist says he approved the commercial, including its use of "Road to Nowhere," but was "under the belief that SSG complied with the prerequisites for such publication, including compliance with the United States Copyright Act."
Crist says he didn't willfully infringe upon Byrne's copyrights or trademarks. The distinction is important as the statutory penalties for willful infringement are much heavier than vicarious stealing.
But Crist says there aren't any damages anyway because Byrne didn't incur an actual injury. Any damages the singer had were the result of the singer's failure to mitigate, he adds.
Crist's lawyers at Greenberg Traurig are also trying to get the case dismissed on lack of jurisdiction in Florida and want the court to order Byrne to pay his attorney fees and costs for this case.