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For years, Republican candidates have been targeted by musicians for using songs on the campaign trail without permission. But get ready for a fight where Citizens United meets copyright law because on Tuesday, the songwriter behind the Paul Anka 1975 hit, “Times of Your Life,” brought a lawsuit against Club for Growth’s Super PAC.
Roger Nichols and Three Eagles Music filed the complaint in California federal court alleging that a commercial targeting Wisconsin senatorial candidate Russ Feingold misappropriated the song.
According to the complaint, “The use was particularly egregious because the Club, acting out of its desire to draw attention to its political agenda, utilized the Composition – a sweet and melancholy song about cherishing the moments of one’s life – to make a derivative work that was a bitter attack advertisement.”
The lawsuit alleges that the Super PAC “made a distinctive effort to draw an association… by using a singer that was clearly impersonating the style of Paul Anka… to mimic the original recording.”
Despite the huge number of cease-and-desists that are regularly sent out to politicians over a candidate’s choice of music, there hasn’t been a tremendous amount of lawsuits on the topic that have resulted in precedent. Some theories of liability are dubious, but the one case that did result in a judge’s opinion — Don Henley vs. former California senatorial candidate Chuck DeVore — dealt with the question of whether satirical lyrics on top of familiar music for a campaign ad was covered by fair use. A judge ruled that it wasn’t.
Given that this latest lawsuit is a complaint over an audiovisual commercial rather than a campaign rally (like what Donald Trump recently faced), Nichols potentially has an easier road ahead. Then again, there will likely be a First Amendment defense that will circle back to what the U.S. Supreme Court said in Citizens United about political speech.
Nichols’ lawsuit, brought by attorney Lincoln Bandlow, asserts that Club for Growth used the “Times of Your Life” recording, “not to comment on or criticize the Composition in any way, but simply to piggyback on the recognizable nature and fame of the Composition to draw attention to the Club’s attack on Russell Dana ‘Russ’ Feingold.”
The commercial was posted on YouTube, aired on broadcast and cable, and was publicized to Politico and other media outlets, according to the complaint. As for the nostalgic song, “Times of Your Life” was most recently used by AMC for the series finale trailer of Mad Men.
“The 30-second Commercial is set in its entirety to the musical notes and melody of the Composition, while certain phrases flash across the screen criticizing Feingold’s ‘liberal record’ and painting him as ‘yesterday’s liberal,’” states the complaint. “Although some of the song lyrics were altered to comment specifically on Feingold’s political record, the Commercial used the original lyrics of the Composition’s chorus, distinctly repeating the refrain ‘Remember? Do you remember?’ several times.”
Besides a copyright claim, the plaintiffs are asserting violation of the Lanham Act through alleged false association or endorsement. Specifically, Club for Growth is said to have “willfully, intentionally and falsely associated Nichols, and his well-known song that is itself uniquely associated with him, in a political attack ad. Such close identification of Nichols with the Club and its political affiliations and positions is an egregious, intentional, an false association that must be stopped.”
If the case goes far, this aspect of the lawsuit could hold implications for whether candidates have to stop the music when it comes to having songs on loudspeakers at campaign rallies. (Or maybe that determination will come from this other new lawsuit filed by the co-author of “Eye of the Tiger” against Mike Huckabee over use of the song at a Kim Davis rally.) Many politicians defend themselves as being covered by public performance licenses, but those licenses don’t impede trademark-like claims such as the one being brought today. The lawsuit also features a Donald Trump cameo insofar as the complaint mentioning that many members of the public only became familiar with Club for Growth thanks to its connection with Trump.
The complaint adds, “Nichols does not want his work or reputation to be associated with the Club for Growth, Donald Trump, or any controversial political or social views associated with them or their supporters.”
Here’s the full complaint. We’ve reached out to Club for Growth for comment. The ad is below.
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