A cease and desist letter has no force in and of itself: all it does is declare the copyright holder's belief that a work infringes a copyright and his threat to enforce that belief by means of a lawsuit if the alleged infringer doesn't stop what he is doing. The threat, however, is often an empty one.
More importantly--and I can't say it often enough--copyright is not "property" in the sense your car or your home is; copyright does not give its owner the right to extract every last bit of economic value that inheres in the copyrighted work. We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions.
There is, however, an inherent tension here. While the First Amendment disallows laws that abridge
the freedom of speech, the Constitution's Copyright Clause calls specifically for such a law. The First Amendment gets government o speakers' backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.
Whitesell, unfortunately entirely ignores these issues in discussing whether the political use of pop songs might constitute fair use, but balancing the conflict between copyright and free expression is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Miin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001). In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The court ordered the lawsuit dismissed because The Wind Done Gone's use of the characters and story line from Gone with the Wind constituted fair use. In doing so, the court made clear that "First Amendment privileges are . . . preserved through the doctrine of fair use" and that to hold otherwise would jeopardize "over 200 years" of the constitutional "guarantee that new ideas, or new expressions of old ideas, would be accessible to the public."
Political speech, of course, is at the heart of the First Amendment protection of free speech. It should be no surprise, therefore, that Whitesell cannot point to one single court decision that has ever ruled the political use of a pop song to be illegal. In fact, in the only case I am aware of that is remotely similar to the situations in which, as Whitesell points out, pop artists sent cease and desist letters, is Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 00 Civ. 6068 (GBD) (S.D.N.Y. 2004). In that case, the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign advertisement that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright.
[T]here’s an argument to be made . . . that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; [and] it’s not taking a penny out of [the artist's] pockets, the most important element in the four-part fair-use balancing test . . . .