For Artists, Political Use of Pop Tunes Going Over “Like A Rock”

Is anyone else dumbfounded by the fact that we still have political candidates getting called out for the unauthorized use of music in their campaigns?  

In my adulthood, we’ve seen the issue come up again and again with presidential candidates, including  Newt Gingrich (Survivor – “Eye of the Tiger”), John McCain (Jackson Browne – “Running on Empty”) and again with Sarah Palin (Heart – “Barracuda”), George W. Bush (John Mellencamp – “R.O.C.K. in the USA” and Tom Petty – “I Won’t Back Down”), Michele Bachmann (Tom Petty – “American Girl”), Mitt Romney (K’Naan – “Wavin’ Flag”) and Barack Obama (Sam Moore/Sam and Dave – “Hold On, I’m Comin’”).

And now we have Donald Trump using Neil Young’s “Rockin’ in the Free World”  when he announced that he was running for president,  R.E.M.’s “It’s the End of the World as We Know It (And I Feel Fine)” at a Tea Party rally in front of the U.S. Capitol, and Aerosmith’s “Dream On” at recent campaign events.

It is hard to imagine that these campaigns continue to ignore the obvious legal nits.

Use of a recording as theme music for a walk-on at a campaign event is permissible if the venue has a license from the applicable performing rights organization, ASCAP, BMI or SESAC.  While most public venues (hotels, arenas, theaters, etc.) have blanket licenses with these organizations, such licenses may exclude music used for political conventions or campaign events.  Businesses, parks or local Moose lodges likely do not have such licenses.  If the venue does not have the requisite license, the campaign must have one.  If a candidate wants to use a song for a campaign advertisement, website or even a YouTube clip, he or she will likely need to negotiate a synchronization or digital performance license with the song writer or publisher and/or the artist or record label.   

Failure to have the appropriate license is embarrassing – or should be – but is not really at the heart of these disputes.  After all, such violations are easily resolved with the payment of the required license fees or royalties, and maybe some punitive amounts for copyright infringement.

What is really at issue is whether or not the artist wants to be associated with the candidate using the music.  Some artists have claimed trademark infringement (K’Naan’s claim against the Romney campaign was that use of his music hurt his brand), or, as suggested by ASCAP,  they’ve argued that unauthorized use violates their right of publicity or constitutes false advertising by implying a false endorsement.   

None of these are particularly strong legal claims, but if a candidate is not worried about being accused of breaking the law, they might at least consider the potential negative publicity.

For example, when McCain/Palin ignored Heart’s request to stop using their song “Barracuda” and it was used to introduce Palin at the Republican National Convention, two key band members, the Wilson sisters, publicly declared that they did not want their music used to promote Palin’s image because her views and values were not representative of American women. 

Another example: Earlier this year, Scott Walker, Wisconsin’s Republican presidential wannabe, used music by the Dropkick Murphys for his entrance at the Iowa Freedom Summit.  It was DM’s rendition of a Woody Guthrie song “I’m Shipping Up to Boston”.  In response, the group tweeted “@GovWalker please stop using our music in any way…we literally hate you!!!  Love, Dropkick Murphys.”

As for Donald Trump, he may be going for a record in the number of artists annoyed during a single campaign, but it’s unlikely to give him much pause.  In response to his use of Neil Young’s music, Young’s manager announced that Young is a supporter of Bernie Sanders (but, as a Canadian, Young won’t be voting).  Trump’s switch to R.E.M. didn’t get him very far.  Michael Stipe of R.E.M. responded with an obscene recommendation, followed by “you sad, attention-grabbing, power-hungry little man.  Do not use our music or my voice for your moronic charade of a campaign.”  (Isn’t Stipe just talking in a language Trump can understand and appreciate?)  And now Steven Tyler of Aerosmith has sent a letter to the Trump campaign requesting that they not use his music, and has taken advantage of the situation to publicly call for copyright law reform to better protect musicians. Trump has now found a “better” song to replace “Dream On” for his events.    

It isn’t clear whether Young, R.E.M. or Tyler will sue, but you can bet that, if the tables were turned, Trump would.