lection season is upon us, and while music may not be the first thing that comes to mind amidst scandals, poll numbers, and innumerable primary debates, politicians’ use of theme songs almost inevitably becomes a hot-button issue for musicians, recording artists, and lawyers. Two presidential candidates have already angered artists who feel their music was misused during campaign rallies, but like many other musicians in the past, those artists will likely need to seek vindication by means other than copyright law – whether via endorsement theories, or in the court of public opinion.
This past September, at a rally opposing President Obama’s proposed Iran nuclear deal, Republican presidential candidate Donald Trump took the stage to R.E.M.’s 1987 hit song “It’s the End of the World as We Know It (And I Feel Fine).” Trump drew significant ire from R.E.M. front man Michael Stipe, who openly voiced his displeasure on social media using rather colorful language. In June, Neil Young also blasted Trump for using “Rockin’ in the Free World” on the campaign trail. Republican presidential candidate Mike Huckabee drew fire for using Survivor’s “Eye of the Tiger” at a rally in September supporting Kim Davis, the Kentucky clerk who refused to issue same-sex marriage licenses, and one of the song’s writers has just filed a copyright lawsuit against Huckabee in Illinois federal court. If history is an indicator, with a year to go before the general election, there are bound to be more of these incidents.
The clash between musicians and political candidates is not a new phenomenon. The use of songs during campaign rallies as politicians’ “entrance” themes has been the most common catalyst for musician/politician feuds over the last 30 years (other situations include candidates using songs in campaign commercials), typically triggering public condemnation and cease-and-desist letters. In 1984, President Ronald Reagan played Bruce Springsteen’s “Born in the USA” at a campaign stop in Springsteen’s home state of New Jersey, prompting The Boss to publicly object to the use in an interview with Rolling Stone magazine. Similar incidents have occurred during at least the last five presidential election cycles. For instance, in 2008, no fewer than 10 artists, from Frankie Valli to the Foo Fighters, asked then Republican presidential candidate Sen. John McCain stop using their music.
Unfortunately for songwriters, these situations usually do not lend themselves to much legal relief from a copyright perspective. If the candidate or the venue at which the candidate appears has secured the proper licenses from performance rights organizations like ASCAP, BMI, or SESAC, the public performance of a song in is generally not actionable as copyright infringement even if the artist finds the use objectionable. (The McCain-Palin campaign took this position in 2008 with respect to the public use of several songs.) Moreover, the performing artist (if different from the songwriter) generally does not have legal recourse for public performance of a sound recording. In fact, it appears that the only two copyright lawsuits filed in connection with a public performance of music at a political rally were filed by the same plaintiff and do not provide any legal guidance: Rude Music Inc. v. Newt 2012, Inc. (which concerned Newt Gingrich’s use of Survivor’s “Eye of the Tiger” in connection with his 2012 presidential bid) settled prior to any substantive rulings, and the just-filed Rude Music Inc. v. Huckabee for President, Inc. (which concerns the Kim Davis rally mentioned above) has just begun.
However, some political music-use case law does exist in the context of the federal Lanham Act, the primary purpose of which is to avoid public confusion as to the affiliation or association between people or as to the origin, sponsorship, or approval of one’s goods or services by another. At least one California federal court allowed such a claim to proceed before the case ultimately settled, albeit in the context of music use in campaign commercials (a context in which copyright law may be a more viable option for artists given the necessity of synchronization licenses for the use of music accompanying video content). In Browne v. McCain, the district court held that singer/songwriter Jackson Browne could state a Lanham Act claim against Sen. John McCain for using his song “Running on Empty” in a presidential campaign commercial because McCain failed to demonstrate that consumers could not possibly be confused as to whether Browne endorsed McCain or the Republican Party. (Browne’s copyright claim also survived the motion-to-dismiss phase of the case.)
Artists may also be entitled to relief under state right-of-publicity laws, but the law varies by jurisdiction. For instance, in New York, there is no common law right of publicity, and New York’s right of privacy statute only permits recovery when one’s name, image, or likeness is impermissibly used for purposes of “advertising” or “trade” – narrowly drawn concepts with broad First Amendment exceptions. On the other hand, California’s common law protects against the appropriation of a plaintiff’s “identity” for the defendant’s advantage, commercial or otherwise. In Browne v. McCain, the court also allowed Browne’s California right of publicity claim to proceed past the motion to dismiss phase because, among other reasons, the court found that Browne had presented evidence showing that his voice was sufficiently distinctive such that McCain’s campaign commercial could constitute unconsented use of Browne’s identity. The case settled however, so it is unclear how a judge or jury would have ruled on the actual substantive merits of the claim.
Unless an Illinois federal judge issues a significant pro-artist ruling in the new Rude Music Inc. case against Mike Huckabee, copyright law in the context of undesirable public performance of music during political rallies is decidedly pro-politician. However, artists may be able to utilize alternatives such as the Lanham Act or state right-of-publicity laws or, at very least, take to the Internet and social media to clarify their political leanings and distance themselves from candidates they find distasteful (without defaming said candidates, of course). When the McCain-Palin campaign refused to cease using Heart’s 1977 hit “Barracuda” in 2008, Heart issued scathing statements on ew.com, and as noted above, Michael Stipe from R.E.M. blasted Donald Trump on Twitter this past September. Sometimes the public outcry even results in winning the hearts and minds of candidates; for instance, Donald Trump voluntarily stopped using “Rockin’ in the Free World” purportedly out of respect for Neil Young’s wishes. Stay tuned for further developments; as presidential primary season continues to heat up and the general election looms, more music drama is likely to unfold either in the courts or online.
Filed in: Legal Blog
December 1, 2015