Damn the C&D letters, politicians just want to ROCK
The following post comes from William Hochberg, Esq., head of the Music Law Department at Greenberg Glusker Fields Claman & Machtinger, LLP. You can follow William on Twitter at @billeeto
That R.E.M. and Survivor recently had to let loose their legal teams against rock-loving politicians is surprising. You’d think political campaigns would know better than to hoist a song as a banner without the blessing of the artist and songwriter. Especially after all the cease and desist letters, takedown notices and even litigation that has leaned in favor of musicians – such as Jackson Browne v. John McCain for use of “Runnin’ On Empty”, and Don Henley v. Chuck DeVore for the send-up “All She Wants to do is Tax” – one would think this issue would be settled.
Usually, campaigns pull down the tune after the first shot across their bow. Well, except Sarah Palin, who wouldn’t let go of Heart’s “Barracuda” – her stage entry music at McCain-Palin rallies during their 2008 outing. She claimed they had a license, and besides the band’s former guitarist publicly said he had no problem with the usage because at least it brought the song back into public consciousness. He may have a point. But the songwriting Wilson sisters demanded in vain that “Sarracuda,” as Palin was called at the time, had to take it “down, down, down.”
A strong hook is a sure way to catch good vibes and excitement for a campaign, but even setting aside the legalities, the wave of negative publicity from a band and its fans would seem to wash away any coolness quotient the campaign may have thought it got from the musical association. So why are Trump, Huckabee and others baiting musicians with political use of musical hooks? Often the most contentious – and popular – examples occur when conservative politicians run afoul of liberal artists. Perhaps the most popular stuff comes from the left hand side of the political dial, and perhaps songs from Ted Nugent and Kid Rock just don’t pack the same mojo? Reportedly, Jimi Hendrix held right wing views, but it’s fair to assume that Tea Party crowds don’t relate to his trippy songs.
Politicians and music go back to the very beginning of our nation, with anthems like George Washington’s “Follow Washington.” One of my top ten faves is John Quincy Adams’ theme song “Little Know Ye Who’s Coming,” with lyrics that include, “Slavery’s comin’, knavery’s comin’/Plunder’s comin’… If John Quincy not be comin!”
In those days, campaigns would have a songwriter custom-make a tune to order. We’d all gain if politicians revisited those good old days, as new political jingles made-to-order would be more fun, if not offer another income stream for songwriters and recording artists. Instead, campaigns want to cash-in on the massive publicity and goodwill contained within a huge classic rock hit, cease & desist letters be damned.
Generally, these usages draw threats of lawsuits charging copyright infringement, trademark infringement and violation of state right of publicity laws. Music law is complicated and campaigns may not be 100 percent sure they can rely on a simple public performance license from a PRO – a performing rights society like the American Society of Composers, Authors and Publishers, Broadcast Music, Inc. or Society of European Stage Authors and Composers which licenses their massive catalogs, including the songs in question to the venues where the politicians are speaking.
But “Eye of the Tiger” poses a special problem for Mike Huckabee and Kim Davis, who may be the first to blink in the lawsuit filed by EMI Music Publishing, because the courthouse where they played the song was unlikely to carry a blanket music license from a PRO, as a concert hall or convention center most certainly would.
Some argue that the PRO licenses themselves don’t specifically cover political events and so those are excluded, although I took a look at the fine print recently and it’s a weak argument in my view. Artists may negotiate their licenses with the PROs to exclude political events from the blanket license, thus allowing the artist to pick and choose which politicians, if any, get to use their songs or recordings. This is a revision I’d expect the PROs to embrace so they are not dragged into the middle of a campaign’s ugly music licensing mess.
But as it stands the PRO blanket licenses probably do give the campaign a license to play any of the more than 20 million songs they cover. Yet even if we assume the venue or campaign has a valid PRO blanket license, the scope of the license is limited and doesn’t include the right to include the music in the soundtrack to a political ad, campaign video or even an online simulcast. A simple PRO blanket license won’t do it. Campaigns also would need not only a synchronization (or “sync”) license from the music publisher, but if they are using a recording, they also would need the record label’s approval in the form of a “master license.”
Assuming all of those licenses are in place, the artist could still object on trademark grounds based on a false suggestion of endorsement or sponsorship. Some cases, like Jackson Browne vs. John McCain, have gone further and claimed the artist’s right of publicity had been violated. In that case, the court leaned hard in favor of Browne, refusing to throw the artist’s claim out, finding that a “common law” right of publicity existed, even though California’s right of publicity statute explicitly excluded political events. The parties soon settled for an undisclosed sum and McCain pulled the song off the campaign.
Sometimes a creator will give their blessing for a political use of their works. “Happy Days are Here Again” became the theme of Franklin Delano Roosevelt’s campaign after the producer of the 1930 hit musical Chasing Rainbows, from which it came, allowed the usage. Perhaps the first legal backlash came when Republican presidential hopeful Barry Goldwater rewrote “Hello Dolly” as “Hello Barry” for his ill-starred 1964 campaign. The musical’s producer, a Democrat, reportedly threatened a copyright infringement action and Goldwater relented. Then Lyndon Johnson, with permission from the same producer, came out with “Hello Lyndon” and the country indeed welcomed him into the White House soon after.
Today even artists who support a candidate are often hesitant to publicly take sides in a political race. One of the writers of “Eye of the Tiger” would not disclose his political preferences in a TV interview after the Huckabee/Davis incident. Earlier, soul music legend Sam Moore famously praised Obama as the first black president but at the same time sent a C&D letter to prevent his use of “Hold On, I’m Coming”, perhaps to avoid turning off fans who may reside on the other side of the political fence. R.E.M.’s Michael Stipe had no trouble trashing Donald Trump and Ted Cruz, telling them to “Go F—k Yourselves” after using his song “The End of the World As We Know It” to pump up their politics, which are worlds away from Stipe’s own views. Whether legal action will be necessary to make him and his fans feel fine again, has yet to be seen.