by Matt Digan
Background
Political campaigns in the United States have had a long and storied history with music. From the inventive and effective “Tippecanoe and Tyler Too” that sang the praises of the Whig Party’s candidates for president and vice president in the 1840 presidential election, to John McCain’s use of Chuck Berry’s “Johnny B. Goode” in his 2008 run for president, music has played an integral role in political campaigns for centuries. Such widespread use of music in political campaigns raises the question of what role the actual artists have in controlling who may use their music and in what context.
The manner in which a campaign uses or intends to use a given song is arguably the most important element in evaluating this question. If a campaign merely intends to use a song to warm up crowds before rallies at various venues around the country, the campaign only needs to obtain a public performance license from a performing rights organization like Broadcast Music, Inc. (BMI) or the American Society of Composers, Authors, and Publishers (ASCAP).[1] Acquiring a license from one of these performing rights organizations does not involve directly contracting with the artists behind the songs and grants a campaign access to millions of songs, though, in the case of ASCAP, members may ask ASCAP to exclude specific songs from a particular political campaign’s license.[2] Campaigns do not usually stir up trouble making use of these types of licenses because they are overwhelming used for activities like playing songs for crowds while they wait for the candidate to come on stage—the uses are not particularly political or potentially controversial.
However, a campaign may seek to go beyond such an apolitical use and instead use a song in a more central role, such as a theme for the candidate and/or campaign message. In these instances, ASCAP recommends that campaigns reach out to the artists for permission because such uses implicate more than just copyright law.[3] An artist’s right of publicity, which provides image protection for famous individuals, and issues of false endorsement, which protects an individual from appearing to support or endorse a product, person, or message, may also be implicated by such a use.[4] The closer a song is tied to the image or message of the candidate or campaign, the more likely it is that the artist can successfully sue under these rights.[5] The list below includes several examples of attempts to connect a song with a campaign’s image or message.
Further, if a campaign wishes to use a song in an ad, they must usually obtain both a sync license and a master use license. To learn more about the various types of music licenses that exist, see our blog on the topic. The campaign will likely need to contract with the song’s publisher and the artist’s record label in order to obtain the necessary licenses. The publisher, record label, and artist can decide if and how they want the artist’s music associated with a particular political campaign. The list below contains an example of a campaign allegedly using a song in an ad without obtaining the necessary licenses.
A campaign could also attempt to use a song in an ad without licenses under copyright fair use principles. There is no clear line between what is a fair use and what is not; an evaluation of fair use involves considering: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.[6] However, testing a campaign’s copyright fair use of a song in a given ad would not come until a lawsuit was filed by the copyright owner; and campaigns—wishing to avoid unnecessary expenses and complications—are far more likely to seek the necessary licenses rather than risk litigation.
Finally, artists have the simple power of leveraging their fame and platform to pressure campaigns into ceasing the use of their music, either through the media, a cease and desist letter, or any other means to affect the desired outcome. In such instances, campaigns usually comply with the artists to avoid risking a public relations issue, to minimize embarrassment to the campaign or candidate, etc.
Here are five notable clashes between musical artists and political campaigns.
1. Bruce Springsteen v. Ronald Reagan, Bob Dole, Pat Buchanan, and All of America
Pretty much since the initial release of the Boss’ 1984 hit single, “Born in the U.S.A,” Americans of all stripes have been misinterpreting and misapplying the song. It is easy to mistake the song, with its rousing chorus, as a full-throated expression of patriotism and pride in being born in the United States, but the actual lyrics of the song espouse a darker and far more cynical outlook on American life. The song follows a young American from small town America, to the jungles of Vietnam, back to his small town, with all of the trials and tribulations along the way.[7]
Springsteen himself has long been associated with the Democratic Party and has repeatedly expressed his displeasure with Republican candidates for president using his songs—especially “Born in the U.S.A.”[8] President Reagan’s campaign asked Springsteen if they could use the song in the President’s 1984 reelection, but Springsteen refused—an example of a campaign hoping to center a song as a theme of the campaign. Bob Dole in 1996 and Pat Buchanan in 2000 each used the song until Springsteen publicly disavowed its use, and in response both campaigns stopped using the song. However, as long as we have Memorial Day parties, July 4th parties, Labor Day parties, and political campaigns, people will likely continue to misinterpret “Born in the U.S.A.”
2. John Mellencamp v. Ronald Reagan, George W. Bush, John McCain
Much like Bruce Springsteen, John Mellencamp is often mistakenly identified as a conservative based on his music and the central place the American heartland has in that music. However, Mellencamp has described himself “as left-wing as you can get,” and has performed for Democratic political campaigns over the years.[9] That has not stopped the likes of Ronald Reagan, George W. Bush, and John McCain from wanting to use his songs—most notably “Pink Houses”—at their political events. Mellencamp discouraged Reagan from using “Pink Houses” in his 1984 campaign when representatives for the campaign reached out, and he requested that the John McCain campaign stop using “Our Country” and “Pink Houses” at his events during the 2008 Republican primary. Additionally, Mellencamp requested that Bush stop using “R.O.C.K in the U.S.A” in 2000, and in each of these instances, the campaigns agreed to either stop using the songs or not use them in the first place.[10]
3. Nickelback v. Donald Trump
In October 2019, President Trump tweeted out an edited clip from Canadian rock band Nickelback’s 2005 hit “Photograph” that depicted lead singer Chad Kroeger holding a photo of then-Vice President Joe Biden, his son, and a Ukrainian gas company board member.[11] Less than a day after being tweeted out, the clip itself was removed by Twitter after they received a copyright complaint filed on behalf of Nickelback by Warner Music Inc.[12] It would have been interesting to see whether President Trump’s clip amounted to a fair use of both the song and music video, but the use of Twitter’s copyright complaint system does not require an evaluation of fair use.
4. Sam Moore v. Barack Obama
During the 2008 presidential election, the Obama campaign took to playing Sam Moore’s “Hold on, I’m Comin” at rallies, during which attendees would sing, “hold on, Obama’s comin’.”[13] The soul music legend himself wrote a letter requesting that they stop using the song because he had not endorsed Obama for president and did not want their use of his song to be mistaken as such an endorsement.[14] The Obama campaign stopped using the song and Moore would eventually go on to perform at President Obama’s inaugural ball in 2009.[15]
5. David Byrne v. Charlie Crist
During his 2010 campaign for a Senate seat in Florida against Marco Rubio, former Florida governor Charlie Crist used the Talking Heads song “Road to Nowhere” in an attack ad against Rubio.[16] Talking Heads lead singer and songwriter, David Byrne, then filed a lawsuit against Charlie Crist for the unauthorized use of the band’s song, alleging that the Crist campaign had not acquired the proper licenses. In 2011, the lawsuit was settled between the two out of court, with Crist releasing a video to YouTube apologizing for the whole incident. In a statement released by Byrne alongside the announcement of the settlement, he confessed his surprise upon learning that the unauthorized use of pop songs in political ads was very common in the United States.[17] If only we had written this article nine years ago for Mr. Byrne, he would have been less surprised.
[1] Using Music in Political Campaigns: What you should know, ASCAP (accessed Nov. 19, 2020), https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Ask the alliance, Copyright Alliance (accessed Nov. 19, 2020), https://copyrightalliance.org/ca_faq_post/political-campaign-music-other-copyrighted-works/.
[7] Josh Terry, Politicians Have Always Misunderstood Springsteen’s ‘Born in the U.S.A,’ Vice (Oct. 5, 2020), https://www.vice.com/en/article/pkyjvn/misunderstood-bruce-springsteens-born-in-the-usa-trump.
[8] Id.
[9] Eveline Chao, Stop Using My Song: 35 Artists Who Fought Politicians Over Their Music, Rolling Stone (Jul. 8, 2015), https://www.rollingstone.com/politics/politics-lists/stop-using-my-song-35-artists-who-fought-politicians-over-their-music-75611/bruce-springsteen-vs-ronald-reagan-bob-dole-and-pat-buchanan-28730/.
[10] Id.
[11] Emma Specter, Donald Trump vs. Nickelback: The Twitter Feud Nobody Was Expecting, Vogue (Oct. 3, 2019), https://www.vogue.com/article/donald-trump-nickelback-photograph-meme-takedown.
[12] Devan Cole and Donie O’Sullivan, Twitter removes Trump’s Nickelback video after copyright complaint, CNN (Oct. 3, 2019), https://www.cnn.com/2019/10/03/politics/twitter-donald-trump-nickelback-tweet-copyright-complaint-trnd/index.html.
[13] Eveline Chao, Stop Using My Song: 35 Artists Who Fought Politicians Over Their Music, https://www.rollingstone.com/politics/politics-lists/stop-using-my-song-35-artists-who-fought-politicians-over-their-music-75611/bruce-springsteen-vs-ronald-reagan-bob-dole-and-pat-buchanan-28730/.
[14] Stephen Davis, Do Rock Stars Dislike Democrats, Too?, Slate (Jun. 30, 2011), http://www.slate.com/blogs/browbeat/2011/06/30/has_a_rock_star_ever_sued_a_democrat_for_using_a_song_in_a_campa.html.
[15] Eveline Chao, Stop Using My Song: 35 Artists Who Fought Politicians Over Their Music, https://www.rollingstone.com/politics/politics-lists/stop-using-my-song-35-artists-who-fought-politicians-over-their-music-75611/bruce-springsteen-vs-ronald-reagan-bob-dole-and-pat-buchanan-28730/.
[16] Matthew Perpetua, David Byrne Wins Settlement Over Unauthorized Political Ad, Rolling Stone (Apr. 12, 2011), https://www.rollingstone.com/music/music-news/david-byrne-wins-settlement-over-unauthorized-political-ad-188523/.
[17] Id.
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