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"Don't Stop" Thinking About Tomorrow? Think To Ask

Politicians using popular songs on the campaign trail should seek artists' permission first
Scott J. Slavick

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What do the presidential campaigns of John McCain, Donald Trump, Newt Gingrich, Ronald Reagan, and yes, even Barack Hussein Obama all have in common? All faced claims of copyright infringement for their use of music or other works of art.

It has long been recognized that music possesses unique power to inspire, motivate, and energize audiences, for patriotic reasons and military campaigns. Who can discount the emotional power of our national anthem, for example, or "The Battle Hymn of the Republic," with its rousing chorus of "Glory, glory, hallelujah"?

It only follows that politicians rely on the power of music as well, and music has been used in political campaigns since the founding of our country. George Washington famously parodied England's popular "God Save the Queen" with his own "God Save Great Washington." Franklin Delano Roosevelt used "Happy Days Are Here Again" as the country fought its way out of the Great Depression. President Barack Obama signatured his own march to the White House with Stevie Wonder's jubilant "Signed, Sealed, Delivered, I'm Yours." Pumping up a crowd, barnstorming for votes, dancing at the inaugural ball and crowning success: at every stop, candidates rely on music to set a theme and create a memorable impression.

But, politicians being politicians, they do not do so without the occasional hiccough. And sometimes that hiccough is loud—like a chorus of critics offering objections, including grapes of wrath from the artists themselves.

That is because candidates often neglect details when picking campaign songs—little details like, say, contacting the artists for permission. Again and again, this leads to embarrassing situations for candidates. For example, when Trump recently played Canadian rocker Neil Young's "Rockin' in the Free World," he received public criticism from Young himself. Trump was only the latest in a long line of campaigners to run afoul of an artist's political preferences. Most famous to our generation, perhaps, was Bruce Springsteen upbraiding President Reagan for planning to install "Born in the U.S.A." as a backdrop for the latter's re-election campaign in 1984. More recently, when union-bashing Wisconsin Governor Scott Walker prominently used "I'm Shipping Out to Boston" at an Iowa event, he received a "We literally hate you!!!" tweet from pro-union punk band Dropkick Murphys.

The opposite can happen as well. Mick Fleetwood recently admitted that Bill Clinton's campaign never requested permission for what became Clinton's iconic 1992 campaign anthem, "Don't Stop (Thinking About Tomorrow)" but because the band generally voted for the Democratic party, it did not object to the exposure.

On the whole, being accused of having "ripped off" an artist's work for political gain is a risk that politicians ought to deflect. Recent controversies over the unauthorized use of music have created unwanted negative publicity for candidates that may want to do the right thing, and may even have a license for the music they play, but still need clarity on their legal obligations relating to such use.

"Before They Make Me Run": Know the Law, Ask Permission

With apologies to the Rolling Stones (or, at least, giving credit where credit is due), the fundamental precept for campaign managers (if not candidates themselves) is to know the boundaries of fair use under copyright law, the related laws protecting speech and limiting it, rights to publicity, and the Lanham Act. It is a complex brew, and candidates in the public spotlight should make decisions about borrowing artists' work within a legal framework, and having guidelines is good for all involved.

Campaigns should also be mindful that politicians are seeking to promote themselves and to attach certain themes and ideas to campaigns. Political speech is fast-moving and fleeting by its nature; unlike commercial speech, where branding and advertising are intended to make a single long-term impression on consumers, political speech is usually issued in the moment, and tomorrow may bring a different message. While commercial entities have a vested interest in searching and vetting their commercial messages, political entities often do not.

While playing a popular song as backdrop for a political advertisement suggests someone secured a license, playing that same song while a candidate walks on stage, or at a party after a convention, is a different type of use—more akin to the use of a purchased song on a sound system at a private event.

The first question, then, is to what use a specific song will be put. Differences in degree do matter: if a campaign wants to use a particular song in a campaign commercial, it is important to learn what permissions it needs and secure them. Creating advertising may entail synchronizing music with video, for example, and may require using a digital version of the master sound recording. Using snippets of a chorus, for example, or just one verse out of context, changes how the song is used; and the campaign would need to contact the song's publisher and possibly the artist's record label to negotiate the appropriate licenses.

Campaign videos containing music that then is to be posted on the Internet also require licenses. And once a commercial has been produced, TV and radio stations and any websites that transmit the commercial also must hold a public performance license.

Events present a different challenge. If a campaign wants to have an event with a musical performance component—using a sound recording or having a band play its own version at the event, then the venue or the sponsor of the event must have a public performance license from the artist, or her or his representative. (It goes without saying that contracting with a band to play its own songs implies their permission!)

Most venues, such as hotels, arenas, stadiums, theaters, and sports arenas, secure blanket licenses from one of the performing rights organizations, of which there are three main ones in the United States. Each represents a large body of songwriters and lyricists. Venues find it easier to get a blanket license that covers the performing rights organizations' entire catalog, which may be performed in the venue, so one license can cover hundreds of thousands of songs. Licenses are often based on whether tickets are being sold or offered free of charge, how often music is being performed, the number of seats in the venue, etc. Event sponsors can simply go online, fill in a form, and obtain a license quickly.

If a campaign is playing a song in a venue that has a blanket license from a performing rights organization, it is probably in compliance with copyright law. However, sometimes rallies happen in nontraditional event spaces, where blanket licenses may not be in place. In those situations, the campaign or group sponsoring the event must take care to acquire necessary licenses from the artist whose work is going to be performed, or their publisher or the performing rights organization.

It should be noted that a performing rights organizations' license does not cover music when it is part of any type of video or motion picture or other advertisement. Even if a general use license may allow one or more songs to be played at an event, if a campaign marries that song to a promotional video, posts any such footage to YouTube or elsewhere online, or uses it in a television advertisement or otherwise, it needs to negotiate a separate license from the copyright owners, as well as for the sound recording if it is using the original band's version. Copyrights for sound recordings are usually retained by the recording company. There are no fixed fees for these types of licenses; they need to be negotiated separately.

There are complexities even beyond following the letter of the law and securing a blanket permission, however. Americans have seen recently this in the case of Donald Trump's rise to the top of the Republican field, when he earned the scorn of alternative-rock band R.E.M. for using their song "It's the End of the Word As We Know It" early in his campaign, and as noted above, more recently of Neil Young.

You Can't Always Get What You Want

But, you ask, if a campaign event takes place in a venue that's properly licensed, and a candidate walks on stage to the sound of a popular song, you ask, why then does the candidate still receive criticism? Why can a candidate sometimes even get sued by an artist for playing his or her song at an event?

A fair question—and thus the wrinkle: If an artist does not want her or his music to be associated with a campaign or candidate, he or she may be able to take legal action even if the campaign has the appropriate copyright licenses.

While a campaign could be in compliance with copyright law, it could violate other legal principles, becoming liable for claims under right of publicity laws, which in many states provide image protection for famous people or artists; for claims under the Lanham Act, which covers the confusion or dilution of a trademark (such as a band or artist name) through unauthorized use; and claims under the so-called "false endorsement" principle, wherein use of an artist's identifying work falsely implies that the artist supports a particular product or candidate.

Often, the issues arise from a campaign's attempt to tap into pop culture. Looking to leverage certain icons or instances of popular culture can engender likelihood of confusion claims under the Lanham Act, and false endorsement claims from their creators. In American Family Life Ins. Co. v. Hagan, for instance, Ohio's gubernatorial candidate Tom Hagan ran commercials against the incumbent Ohio governor Taft that parodied AFLAC's iconic television commercials.

Specifically, Hagan's internet commercials include a crudely animated character made up of Governor Taft's head sitting on the body of a white cartoon duck; the duck quacks "TaftQuack" several times during each commercial. Hagan broadcasts these commercials at his website,www.taftquack.com. 266 F. Supp. 2d 682 266 (N.D. Ohio 2002)

AFLAC did not want to look like it was picking sides in the campaign; and filed a range of claims including trademark dilution and copyright infringement; and while the court denied the company a preliminary injunction, it did find that AFLAC was entitled to a trial on the merits.

If you're smiling at the phrase TaftQuack, you're not alone. These cases can be downright amusing. In 2014, the Hershey Company sought to enjoin Maryland State Senator Stephen S. Hershey Jr, from using its brown-and-white trade dress in connection with campaign activities—including signs saying "HERSHEY for Senator." As the world-famous chocolate maker explained in its complaint, the candidate was manifestly using Hershey's "fame and equity" in a bid to drum up votes. Testament to chocolate's enduring appeal, may I add, it was the company's second action against the senator in five years: it sued him during an earlier campaign in 2010.

In trademark law, the owner of a registration is often forced to defend against any type of mimicry that can lead to the mark's dilution. With respect to music, the principle is analogous to the extent that an artist is seeking to protect the integrity and the value of a popularly recognized name and brand. As a general rule, then, a campaign manager should be aware that, in most cases, the more closely a song is tied to the image of a candidate or the message of the campaign, the more likely is it that a recording artist, a songwriter, or the producing entity that owns the copyright could object to that song's usage in a campaign.

It's worth pointing out, too, that the impact of a song's unauthorized use can be problematic for the owner. In taking an action against a use they think objectionable, that owner risks giving a politician additional publicity. Not to take action may invite the public to think he or she endorses the song's use or even gave permission for such use—in a recent case, giving the impression that someone like a Neil Young, a singer with a notably liberal profile, was endorsing Donald Trump, whose recent pronouncements seem anything but.

This amounts to a type of a reverse endorsement trap: when Ronald Reagan "declared" Bruce Springsteen as one of his own by adopting his iconic song "Born in the USA," Springsteen was forced to choose between letting the association stand or actively disassociating from the candidate. He chose the latter; when the ambiguity (or the brand risk) gets great enough, most artists will, one way or the other, step in.

Fair Use: The Slippery Slope. (Oops! Song Title!)

It seems simple: if a campaign wants to use a song as its theme and minimize the risk of either legal claims or the public disregard of popular artists, it should solicit recording artists' permission in advance.

Why don't more do so? The answer surely has something to do with the nature of campaigns, with their mad pace meaning decisions are often made on the fly. Candidates have many issues to address and keep frantic travel schedules; it's easy to see copyright issues get pushed "to the back of the bus." But many candidates and political groups also apparently rely on the legal concept of fair use when questions arise about how campaign materials incorporate works created by third parties.

There are widespread misconceptions in the political arena about just what fair use entails. In general, fair use is a limited situation where copyrighted works may be used without a license. While a candidate may use a quote from a copyrighted work such as a poem or a novel, for example, fair use suggests she or he might only use a sentence or two, and certainly should give credit to the author. A candidate might even want to quote the lyrics of a copyrighted song—again, permissible if limited in scope and citing its source.

But fair use does not create carte blanche entitlement to use the entirety or even substantial portions of copyrighted works in a political context. As those who practice copyright law well know, fair use is not a broad defense; there are specific, often subtle tests to determine whether something qualifies.

Political campaigns may also rely on First Amendment law. Politicians are often careless about intellectual rights because much speech is protected by the First Amendment, and some candidates—in particular, a notably polarizing recent candidate we likely all can think of—are in the habit of saying almost anything that occurs to them, without reckoning the consequence.

A reliance on freedom of expression is often justified. InKeep Thomson Governor Committee v. Citizens for Gallen Committee 457 F Supp 957 (Dist. Ct. - NH, 1978), the political committee supporting incumbent New Hampshire governor Peter Thomson had purchased the copyrighted song "Live Free or Die," which took as its title the state's famous motto and which it used in campaign advertisements. When supporters for Democratic gubernatorial candidate Hugh Gallen used about 15 seconds of the same song in an anti-Thomson ad, Thomson sued. Unfortunately for Thomson, despite the campaign's having secured the rights to the song, the court found that the non-commercial, political debate engaged in by the Citizens for Gallen was protected by the First Amendment.

But what if the campaigns' use is not protected by the fair use defense or the First Amendment? Statutory copyright infringement damages can easily reach the hundreds of thousands of dollars and include attorney's fees. Such disputes can also lead to damaging publicity, particularly when the dispute is with a popular songwriter or band. The presidential campaign for former Alabama governor Mike Huckabee—who, incidentally bears little resemblance to one of the world's greatest predators—recently agreed to pay the band Survivor $25,000 to settle a suit for a one-time use of their song, "Eye of the Tiger." A claim for millions of dollars against the Ted Cruz campaign and its advertising firm for unauthorized use of two songs also has survived preliminary motions to dismiss and is proceeding.

While the laws surrounding the use of songs on political campaigns can appear muddy, with candidates getting some permissions but not all, it's crystal clear that campaigns are going to continue using songs to help motivate voters and get their messages across regardless of the risks. It's just one aspect of the political fray we endure during our extended political season; when the dust settles and the speakers are powered down, I'm sure many breathe a hallelujah.


Copyright 2016 © by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar.

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