BY:Neil J. Rosini, Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal on May 6, 2016)
A presidential election year brings not only political controversy, campaign rallies and national party conventions, but also artistic controversy when musical artists complain that their songs have been appropriated by candidates who attempt to identify themselves with those songs. That office-seekers do so at those rallies and conventions is hardly surprising; a musical composition can underscore the campaign’s message through its lyrics and arouse passion. The temptations can be so strong, however, that campaigns overlook the desirability (if not the legal requirement) of obtaining permission.
As reported in rollingstone.com and CNNPolitics.com, the list of songwriters and musicians who have claimed injury – often more a violation of the “beliefs they hold dear”[i] than financial loss – is a long one. Bruce Springsteen interrupted Ronald Reagan’s use of “Born in the U.S.A.” Bobby McFerrin opposed George H.W. Bush’s use of “Don’t Worry, Be Happy.” Isaac Hayes stopped Bob Dole’s use of “Soul Man” (lyrics changed to “I’m a Dole Man”). Nancy and Ann Wilson from the 70s rock band Heart found distasteful Sarah Palin’s use of their song “Barracuda” (Governor Palin’s high school nickname being “Sarah Barracuda”) and Gretchen Peters didn’t like her use of “Independence Day.” Tom Petty demanded that Michele Bachman leave “American Girl” alone. Tom Scholz put an end to Mike Huckabee’s performances of “More Than a Feeling.” Sam Moore rejected Barack Obama’s use of “Hold On, I’m Comin’.” The Boston-based band, Dropkick Murphys, notified Scott Walker by Tweet that he should stop using their music “in any way,” adding for good measure, “we literally hate you.”[ii]
Some candidates have received more than their share of objections. John Mellencamp, John Hall, and Sting could not bear George W. Bush’s uses of “R.O.C.K. in the USA,” “Still the One,” and “Brand New Day,” respectively. Donald Trump received complaints from R.E.M. (“It’s the End of the World as We Know It [And I Feel Fine]”), Steven Tyler of Aerosmith (“Dream On”) and Neil Young (“Rockin’ in the Free World”). John Hall (“Still the One”—again), and Foo Fighters (“My Hero”) castigated John McCain; Jackson Browne (“Running on Empty”) sued him (see below).[iii] This list is not exhaustive.[iv]
Usually, the disputes are resolved by cessation or otherwise are settled quickly without litigation. (Legal niceties aside, what candidate wants to be embarrassed every time his or her adopted anthem is heard?) But as a result, the strength of the legal theories on which these artists rely – copyright, Lanham Act, and right of publicity – has received scant judicial attention. There is some legal precedent, however, as well as guidance from industry sources (including the foregoing musical artists) that concern the use of music in political campaigns without express approval.
Jackson Browne’s 2008 suit in the Central District of California[v] was one of the relatively few artist complaints pursued in court, and it was not immediately settled. Instead, it survived two motions to dismiss and then it was settled.
The song in issue was “Running on Empty,” released in 1977 in an album of the same name that sold seven million copies. According to the court, both the album and the composition were “famously associated with Browne,” who owned the copyright in the composition. McCain used it in an 80 second web video titled “Pain at the Pump” that criticized Barack Obama’s energy policy. The song played at varying levels of volume in parts of the video and toward the end, Browne was heard singing the chorus while “Barack Obama: Not Ready to Lead” appeared onscreen.
The video could be seen on YouTube, other websites, and television and cable networks in Ohio and Pennsylvania, besides being “aired and discussed by the national news media.” No license was obtained to use the composition. Browne sued McCain, the Republican National Committee (“RNC”) and the Ohio Republican Party (“ORP”) for direct and vicarious copyright infringement, false association or endorsement under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), and violation of California’s common law right of publicity. The RNC’s motions aimed at the pleadings came to naught.
On a motion to dismiss for failure to state a claim, the RNC invoked fair use to defend against the copyright counts, but the court held that merely using a copyrighted work in a political campaign did not establish fair use as a matter of law. Furthermore, the facts were insufficiently developed “to conduct a thorough analysis” at so early a stage in the proceedings.[vi]
On the Lanham Act claim the court rejected the RNC’s assertion that the act applied only to commercial speech and not political speech, citing prior decisions in support. “Indeed,” said the court, “the Act’s purpose of reducing consumer confusion supports application of the Act to political speech, where the consequences of widespread confusion as to the source of such speech could be dire.” The court also rejected the RNC’s argument that use of the composition had not been “in commerce” – a jurisdictional predicate of the Act.
The RNC’s invocation of the First Amendment as a defense to the Lanham Act similarly misfired. Although the court acknowledged that trademarks may be included without authorization in artistic works when the use passes an “artistic relevance test,” the RNC did not establish that the video was an “artistic work.” Moreover, the plaintiffs’ claim would not be barred merely because the video is noncommercial, political speech.
The RNC argued that the plaintiffs could not establish a Lanham Act claim in the absence of likelihood of confusion as to the origin of the video, and asserted that the video clearly identified its source as the ORP. The court held that this fact alone “does not show that a consumer could not possibly be confused” over whether Browne gave his endorsement. Further, the RNC failed to address all of the relevant factors relating to likelihood of confusion, leaving the court unable to “thoroughly analyze” the question on the motion.
The Lanham Act, however, cannot always be relied upon by plaintiff musicians. In 2010, the year after the Browne decision, musician Don Henley asserted a Lanham Act claim (also in the Central District of California) against a U.S. Senate candidate, Charles DeVore, who used two of Henley’s songs without authorization in his campaign. In that instance, the lyrics of both songs, sung by another vocalist, were modified to satirize the candidate’s opponent and others. Henley’s claim, however, was rejected by the court on the ground that the Lanham Act cause of action is limited to use of unauthorized imitations that mimic the plaintiff’s voice and confuse the public as to whether the original vocalist is actually making an endorsement; here consumers would not confuse the “less-than-angelic” substitute for Henley’s voice.[vii] Nevertheless, the candidate ended up settling and apologizing.[viii]
Also in 2010, David Byrne sued Florida Governor Charlie Crist for using “Road to Nowhere” in an online video opposing Marco Rubio in that U.S. Senate race. [ix] Citing the “highly publicized” Jackson Browne case and its settlement, Byrne’s complaint alleged direct and vicarious copyright infringement and violation of the Lanham Act. (“Defendants intentionally used Byrne’s identity and persona through the use of his voice in the [c]ommercial to confuse the public into thinking that Byrne sponsors, endorses and is associated with Defendants, and specifically Crist.”)
As part of his settlement several months later, Crist posted a video of apology, which might well be accessible on YouTube forever.[x] And in the press, Byrne took credit for “standing up to this practice,” expressing the vain hope that politicians wouldn’t do it again.[xi]
In the Browne case, the RNC also made a motion to strike Browne’s common law right of publicity claim under the California anti-SLAPP statute, on the basis that the claim was brought “primarily to chill the valid exercise of free speech.” The RNC made the necessary prima facie showing that the claim arose “from an act made in connection with a public issue or issue of public interest, in furtherance of the defendant’s right of free speech.” But Browne defeated the motion by establishing a possibility of success on the claim: he showed that the RNC appropriated his identity to its advantage; lacked his consent; and injured him not only by giving the false impression that Browne was associated with or endorsed McCain’s candidacy, but also by failing to pay a license fee.
The RNC invoked the First Amendment on this motion, too. It argued that political expression and speech during a political campaign deserved protection, but the court held that mere use of a composition in a political campaign does not bar a claim based on improper use of identity. The RNC also argued that the First Amendment barred claims based on “transformative use” of a celebrity’s likeness. But the court noted that the video contained a verbatim copy of portions of the composition containing Browne’s voice and they were not altered in any apparent way. The RNC also attempted to establish that the public interest in political speech blocked the right of publicity claim, which the court rejected because there was no evidence that the defendants chose the composition because it or Browne were of public interest.
As part of the settlement, in addition to an undisclosed cash payment, Browne received a public apology from Senator McCain.[xii]
Licenses and Limitations
Both the Browne and Byrne suits addressed use of the plaintiff’s music in audiovisual works, for which, lacking a fair use defense, reproduction licenses are generally necessary. This applies not only to the composition but also to the sound recording, which is most often owned by a record label. But what of a live performance of a song when the campaign or the venue in which an event is held possesses a “blanket license” from a performing rights organization – like ASCAP or BMI — which permits use of all compositions in its entire repertoire?[xiii]
The McCain-Palin campaign obtained its own blanket licenses and relied on them in response to the objection by the Foo Fighters: “This campaign has obtained and paid for licenses from performing rights organizations, giving us permission to play millions of different songs, including ‘My Hero.’”[xiv] Venues in which events appear also tend to hold blanket licenses, but relying on them can be risky for campaigns. Not all venues have blanket licenses and those that do may be limited to using music for specific types of events, like sports. ASCAP has published guidelines for political campaigns concerning copyright issues in music that warn: “while many venues have proper ‘public performance’ licenses, as a general rule, the licenses for convention centers, arenas and hotels exclude music use during conventions, expositions and campaign events.”[xv]
In any event, an argument based on a public performance license ignores vulnerability under the Lanham Act even when a performing rights license is in place.[xvi] Showing that the public indeed infers an endorsement or affiliation may present evidentiary challenges, but they will shrink in proportion to the fame of the musical artist whose song is being used and the extent to which a campaign uses the song.[xvii] The same factors should apply to publicity rights claims. An isolated use is one thing; adoption as a campaign anthem is another.
Even though a panoply of images, emotions and associations can be conjured up by the adroit use of a recording as a candidate’s theme, campaigns are well-advised to avoid the potential embarrassment and legal liability that may result if the use is not properly cleared.
[i] Castillo, Walbert, “Rockers vs. Candidates: 11 Times Campaign Songs Went Off-Key,” CNNPolitics.com, last updated July 14, 2015, http://www.cnn.com/2015/06/19/politics/musicians-politicians/, accessed April 13, 2016.
[ii] See Castillo, supra; Chao, Eveline, “Stop Using My Song: 34 Artists Who Fought Politicians Over Their Music,” Rolling Stone.com, last updated July 8, 2015, http://www.rollingstone.com/music/lists/stop-using-my-song-34-artists-who-fought-politicians-over-their-music-20150708, accessed April 13, 2016.
[iii] Sisario, Ben, “In Choreographed Campaigns, Candidates Stumble Over Choice of Music,” The New York Times, October 12, 2015, http://www.nytimes.com/2015/10/13/us/politics/in-choreographed-campaigns-candidates-stumble-over-choice-of-music.html, accessed April 13, 2016; See Chao, supra.
[iv] For example, John McCain’s 2008 campaign also received complaints from ABBA, Van Halen, Frankie Valli, Bon Jovi and Heart, owing to its use of music. Moser, Jana, “Songs in Contention; Copyright Holders Have Begun to Challenge the Customary Appropriation of Songs for Political Campaigns,” Los Angeles Lawyer, 36-MAY L.A. Law. 28 (2013).
[v] Browne v. McCain et al., 611 F. Supp.2d 1062, 612 F.Supp.2d 1125 (C.D. Cal. 2009), R. Gary Klausner, J.
[vi] In 2010, another judge in the Central District of California, James V. Selna, analyzed fair use in great detail in a suit brought by musician Don Henley against Charles DeVore. In that instance, however, the campaign had changed the lyrics and supplied its own vocalist, allowing the defendant to argue a parody defense (unsuccessful) that would not apply to the majority of campaign uses in which the lyrics and vocalists are original. Henley v. Devore, 733 F. Supp.2d 1144 (C.D. Cal, 2010).
[vii] Id. One wonders at the distinction being made between confusing the public by use of an imitation voice as opposed to the actual voice; it seems that in either case, a false endorsement might be inferred.
[viii] Chao, supra.
[ix] Byrne and Index Music, Inc. v. Crist et al., No. 8:10-cv-01187- RAL- MAP (M.D. Fla., 2010).
[x] https://www.youtube.com/watch?v=s4k13LmlcUE, accessed April 16, 2016.
[xi] “Road to an Apology,” Daily Mail.com, April 12, 2011, http:// www.dailymail.co.uk/news/article-1376189/Road-apology-David-Byrne-gloats-embarrassing-Charlie-Crist-copyright-victory-making-say-sorry-YouTube.html, accessed April 16, 2016.
[xii] See Chao, supra.
[xiii] Unlike musical compositions, no permission is required for public performance of a sound recording in a venue. See 17 U.S.C. § 106(4).
[xiv] See Chao, supra.
[xv] “Using Music In Political Campaigns: What you should know,” http://www.ascap.com/about/legislation/advocacy-resources/using-music-in-political-campaigns-what-you-should-know.aspx, accessed April 13, 2016.
[xvi] See Moser, supra.