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This story first appeared in the Sept. 14 issue of The Hollywood Reporter magazine.
With due respect to Mitt Romney, the most stressed-out person at the Republican National Convention might have been the guy picking the music. During the past few years, GOP political candidates have been inundated with legal threats from recording artists over the use of their songs at campaign rallies and in commercials. So far this presidential cycle, the Romney-Paul Ryan ticket has been slammed by rapper K’naan for using his “Wavin’ Flag,” rock band Silversun Pickups sent a nasty lawyer letter over the use of “Panic Switch” and Twisted Sister’s Dee Snider objected to Romney pumping up his supporters with “We’re Not Gonna Take It.” (“There is almost nothing on which I agree with Paul Ryan,” he said, “except perhaps the use of the P90X [workout routine].”) Former candidate Newt Gingrich was even sued by Survivor member Frankie Sullivan for playing “Eye of the Tiger” at a rally (that case is in the process of settling).
For politicians, music provides a way to connect with average voters — think Bill Clinton‘s use of Fleetwood Mac‘s 1970s anthem “Don’t Stop” as a rallying cry. But most liberal-leaning artists simply don’t want to be associated with the GOP. In 2008, the John McCain-Sarah Palin ticket was hit with legal complaints from Jackson Browne, Jon Bon Jovi, Heart, Foo Fighters, Van Halen, John Mellencamp and others.
Experts say it’s not clear whether campaigns can be held liable for incorporating music into political ads or events without permission. Some believe the use of music for political ends requires explicit copyright licenses from song publishers and that by broadcasting well-known tunes, politicians are implying endorsements, a potential trademark violation under federal law.
Lawrence Iser, a Los Angeles attorney who has represented musicians in these fights, believes politicians are at fault for not obtaining licenses. The candidates he has taken to court initially cited the First Amendment’s protection of political speech, but they later settled and offered public apologies. In resolving Browne’s suit against McCain, Iser says he got a pledge from the Republican National Committee that copyrights would be respected. “Last winter, I turned to Jackson Browne and said, ‘We really accomplished something,’?” he says. “Then, a week later, Romney used a K’naan song and Newt Gingrich was sued. We congratulated ourselves too quickly.”
Others believe politicians have the law on their side and merely are retreating from unwanted (and expensive) legal distractions. “They want to talk about substantive issues and don’t want the public to get sidetracked,” says litigator Bonnie Eskenazi, who defended former Florida Gov. Charlie Crist in a claim brought by Talking Heads‘ David Byrne.
The only court decision on the issue involved California senatorial candidate Chuck DeVore‘s satirical use of Don Henley songs in 2010. DeVore’s campaign played “All She Wants to Do Is Dance” and “The Boys of Summer” in two campaign videos titled “All She Wants to Do Is Tax” and “Hope of November.” (DeVore subsequently settled and apologized after losing at the summary-judgment phase.)
The issue hasn’t been considered by an appellate court, which might analyze the free-speech aspect more closely. Gingrich, unlike in earlier cases, said he had obtained a “political license” to use “Eye of the Tiger” during a rally from ASCAP, which administers the right to play music in public. Unlike for TV ads, where a separate “sync” license (for music played against a video backdrop) is usually required, ASCAP generally provides live-music licenses to whomever wants them for a nominal fee. So campaign events might be on more solid legal ground than video messages, but Gingrich didn’t fight long enough to get a judge’s ruling.
One Republican campaign adviser says it’s wrong to suggest — as some musicians have in legal threats — that songs aren’t vetted before being played in a political context. Most serious campaigns screen music, but candidates sometimes have little control. McCain was sued in 2008 after an Ohio Republican Party staffer — not a member of his team — bought Browne’s “Running on Empty” on iTunes and put it in a web ad attacking Barack Obama.
Nonetheless, with few top acts willing to perform for the GOP (this year’s convention featured obscure country singer Lane Turner belting out “I Built It”), the temptation to co-opt popular music remains. And Iser says copyright law permits musicians to sue politicians if it can be shown that intermediaries are acting as political agents.
This raises a tangential issue: Now that the Supreme Court has allowed super PACs to spend unlimited funds as long as candidates don’t collude, politicians can’t legally coordinate with groups creating many ads on their behalf. Thus, if a super PAC decides to put music in an ad without getting an artist’s permission, a candidate could end up in a legal case over whether he or she was able to influence the decision. Says Iser, “I imagine that’s something that politicians don’t want to be investigated.”
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