More Musicians Upset Over Political Usage of Songs

One of the many interesting aspects inherent in a Presidential campaign is the music that is played or invoked during political rallies and commercials without the permission of the original artists. Campaign managers envision the masses getting pumped to popular and catchy songs with chorus lyrics that can sound patriotic or on-point with the campaign’s message, regardless of whether the artist or composer had similar intentions.

Predictably, this year has witnessed a string of unhappy artists whose songs have been used without their permission, including John Mellencamp, Jackson Browne, and, most recently, Van Halen, whose song “Right Now” was used during the introductory rally for vice-presidential nominee Sarah Palin (McCain and his family are introduced at 1:09)

Nonetheless, according to MTV News, Van Halen (the new David Lee Roth version) is not happy:

According to the band’s publicist, the members had no idea McCain was going to use their song as his entrance theme and were never approached by McCain’s camp for permission to use the track.

“Had they asked, permission would not have been granted,” Liszweski said.

Sammy Hagar, on the other hand, is fine with the use of his lyrics and is taking a bi-partisan approach:

“When I wrote the lyrics to ‘Right Now’, I intended them to inspire people to not sit around and wait for something they believed in but to go out and get it, to make a change however they needed to,” he said in a statement. “Whether it was McCain who used the song or if Obama had chosen to use the song, with the current political climate, the lyrics still have the same meaning, and we all need to do something to make a difference, every action counts.

Back in February, Mellencamp became displeased with the McCain campaign’s use of the songs “Our Country” and “Pink Houses”. After Mellencamp voiced his displeasure, McCain agreed to quit using the songs. Then, in August, Jackson Browne took a stronger stance after his hit song “Running on Empty” was used in a campaign commercial. Browne sued the McCain campaign, the Republican Party, and the Ohio Republican Party alleging copyright infringement and a violation of Browne’s right of publicity:

Copyright infringement aside, Browne’s lawsuit also alleges that the song’s usage falsely suggests that he is a McCain supporter. Browne is seeking a permanent injunction prohibiting the use of the song, as well as undisclosed damages.

According to the L.A. Times, the McCain campaign claims to have had nothing to do with the use of the song, alleging that the commercial was purely the work of an outside party and “that the ad in question is not a McCain campaign ad but one put together by the Ohio Republican Party.”

Back in 1984, Ronald Reagan famously interpreted Bruce Springsteen’s “Born in the USA” as being a “message of hope,” even though the song was more an attack against the treatment and prospects of Vietnam veterans upon their return to the USA. Reagan stated, “America’s future rests in a thousand dreams inside our hearts. It rests in the message of hope so many young people admire: New Jersey’s own Bruce Springsteen.’”

At the time, “Born in the USA” was the number one song in America, and Springsteen was clearly not in favor of his song being connected or interpreted in this manner:

“I think people have a need to feel good about the country they live in,” he later told Rolling Stone. “But what’s happening, I think, is that that need — which is a good thing — is getting manipulated and exploited. You see in the Reagan election ads on TV, you know, ‘It’s morning in America,’ and you say, ‘Well, it’s not morning in Pittsburgh.’ “

Ironically and, perhaps, shrewdly, this year the Democratic Party used “Born in the USA” as one of the main songs before Barack Obama’s keynote speech at the Democratic Convention (Springsteen supports Obama), although analysts say this time the song was used to promote its original message:

While “Born in the USA” spoke of the effects of Vietnam, Obama’s speech spoke of the effects of Iraq. While the song spoke of a man turned away from work at the town refinery, Obama bemoaned a government that he said “lets veterans sleep on our streets and families slide into poverty.”

At the same time, the Obama campaign is also guilty of using songs without permission, as it did at the closing of Obama’s speech last Thursday, when the Brooks & Dunn song “Only in America” was used as Obama and his family strode off the stage:

According to Entertainment Weekly, there is some irony with this selection as well:

If you’re not aware of the history of the GOP using “Only in America,” a refresher is in order: Brooks & Dunn played it at the Bush inauguration in 2000. At the 2004 GOP convention, Dick Cheney used it as his exit music after his speech. And President Bush frequently used it on the campaign trail four years ago, even asking Brooks & Dunn to come out and play it live at rallies in the final week of the race.

In this instance, as is common, there was more than one composer of the “Only in America” and each has their own political views. With “Only in America”, a friend of Brooks & Dunn, Don Cook, was a co-writer of the song and has Democratic views. Meanwhile, Brooks and Dunn both lean Republican. Entertainment Weekly writer Chris Willman talked to Cook after the Democratic Convention:

Since Cook was a little taken aback when the GOP adopted it, does this feel like turnabout is fair play? “That’s exactly what Kix Brooks said to me when he called,” said Cook. “He said, ‘You had to endure George Bush using it, so it’s only fair that I would have to endure Barack Obama using it.’ But he said it in a real light-hearted way.["]

From a legal standpoint, there is no clear cut answer as to how an artist filing suit would fare. While it is clear that there is a copyright infringement, since the songs are being used publicly without the artists permission or without paying royalties to a performance rights organization, such as ASCAP or BMI; still, it is not clear whether the infringement would be protected by a Fair Use argument. In the case of a song performed at an event, by going through performance rights organizations all McCain or Obama would likely have to do to escape a copyright claim is pay a royalty (which could be very expensive, considering the number of listeners). There are also strong First Amendment concerns, and the political speech and commentary nature of the uses, as well as the non-commercial aspects, could be enough to stop a claim.

In an article from the Indianapolis Business Journal, Indiana lawyer Jonathan Polak noted that right of publicity would the claim to succeed:

“We’re not concerned here about an artist’s objections to someone playing a song for the sake of the song; what we’re really talking about is some type of potential for false endorsement,” said Jonathan Polak, chair of the intellectual property group at Indianapolis firm Sommer Barnard. “This isn’t about the law; it’s about embarrassing candidates on policies they don’t agree with. But yes, they have a legal leg to stand on.”

Jackson Browne may have a strong case (although how effective it would be against McCain would depend on his campaign’s knowledge or acceptance of its use) because his song was adapted and used in a commercial, which is an “adaptive use”, which Indianapolis attorney and Indiana University School of Law-Bloomington adjunct professor Robert Meitus discussed:

“That implicates a whole different realm of rights,” Meitus said, noting that the use is called adaptation and involves getting permission from copyright holders for a specific use.

“Technically, it may be infringement and there’s no exceptions. But practically speaking, [a candidate] could play a song for an entire campaign without songwriters really being able to do much. The key is if they’re doing anything more than just publicly playing it.”

In other words, those claims that might stand the greatest chance of success would involve an artist’s song that had been used more as a theme for the campaign, rather than just being played at a few rallies; or a song that was adapted and synchronized with video. Candidates could also hire a cover band to play the songs, since there is a statutory right to have another band cover the song, although a fee would still need to be paid to one of the performance rights organizations for the public performance (although it would likely be a lesser fee since the original recording is not used).

Nonetheless, there is still the question of whether the use of the song implies an endorsement by the artist, and whether the general public would make this connection. Indianapolis attorney Charles Meyer addressed this in the Indianapolis Business Journal:

“I have difficulty believing that someone would expect that a musical artist is endorsing a candidate merely if that music is played once in the background at an event,” he said. “But if it’s a well-known piece of music by a famous artist and that song is played so often it becomes a theme song for the candidate, people might start asking if there’s a connection”

To further this, many popular artists have not been shy about expressing their own political views, which may or may not diminish the public perception of whether an artist is endorsing a candidate when their song is used. Of course, past history seems to put the GOP at a disadvantage in terms of finding acceptable songs by supportive artists. AOL News writer Brandon Barker:

So, when it comes to choosing songs for rallies, ads and conventions, what’s a Republican to do? According to Harmony Central, the short-list of right-leaning musicians includes Donny Osmond, Ted Nugent, Gene Simmons, Kid Rock and Wayne Newton.

NOTE: I have posted an update to this article with a comment on the use of Heart’s song “Barracuda”

And, finally, just for fun:

~ by msalsbery on September 4, 2008.