The copyright laws involving campaign music are murky, as Gingrich had argued. Generally, the costs of litigation aren’t worth the challenge in court. Sullivan for one said he will not take legal action this time against Davis and Huckabee, but did say that the use of the song was personal. Sullivan told Rolling Stone, “I do not agree with Kim Davis’ stance and do not believe in denying gay rights and the freedom for all individuals to choose the lifestyle they want to live. Our Constitution, and the words of our Founding Fathers, stand tall for freedom, which is what America is all about. I find it ridiculous in this day and age that this fight against gay marriage has gone on, even after the Supreme Court’s ruling. Let’s stop!”
As the 2016 presidential campaign engulfs the news cycle, a familiar conundrum has emerged on the Republican campaign trail. With apologies to “madman” Ted Nugent, rock stars are nearly universally Democrats, or perhaps more accurately, are not Republicans. What complicates matters is that rock anthems make for really good motivational campaign music. Legendary Canadian liberal activist and Rock & Roll Hall of Famer Neil Young is the latest axeman to cry foul over the unauthorized use of his music. The Donald has had speakers cranking out Young’s “Rockin’ in the Free World” on several of his stops along the campaign trail. In an onstage interview in Nantucket on Saturday, Young called Trump’s choice of his song “a surprise,” adding that “Donald Trump is Donald Trump, and I don’t dislike Donald, I don’t agree with his policies.” Young added, “Bernie [Sanders] has been using it now, Donald just never asked me. If he asked me, I would have said, ‘you know, I really like Bernie,’ but he didn’t ask me. It’s okay.” Young added that he had previously requested Trump’s help to fund a music download service, Pono, before his run for the White House, which Trump respectfully declined. Trump for his part, called Young a “total hypocrite” in June for wanting to go into business with him along with posing with Trump in a photo-op, yet shaming him for the use of his song.
Not all rock legends are as copacetic about the unauthorized use of their classics. Take another Hall of Fame group, REM for example, a band also known for its political activism. Both Trump and Texas Republican Senator Ted Cruz have used the band’s 1987 cult classic “It’s the End of the World as we Know it” at campaign events.” REM lead singer Michael Stipe emailed the Daily Beast earlier this month, writing “Go f*ck yourself—you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign.” The band also posted on its Facebook page asking the candidates to cease and desist from using their music at campaign events, although adding that there are greater issues at stake this campaign season. Another rock band, Survivor, has also reacted strongly opposed to the use of its classic “Eye of the Tiger” motivational anthem during the post-release press conference of jailed anti-gay marriage Kentucky clerk Kim Davis, who was introduced by semi-candidate Mike Huckabee to the song in front of an adoring crowd. One of the song’s co-writers Jim Peterik said he was “gobsmacked” when he heard the song play, and the other co-writer Frankie Sullivan said that the band did not authorize the use of the song, adding that “I don’t like mixing rock and roll with politics; they do not go hand in hand. What upset me the most was that, once again, my song was used to further a political agenda, and no one even bothered to for permission.”
Of course, the unauthorized use of rock songs has occurred nearly every four years in recent history, but perhaps the most famous example happened over 30 years ago. Ronald Reagan repeatedly used Bruce Springsteen’s anthem “Born in the USA,” seemingly as a rallying call to patriotism. What the president probably didn’t realize, however, is that the song’s lyrics involve the disillusionment and mistreatment of soldiers returning to the U.S. from Vietnam. Springsteen, the working-class icon, used the slight as a platform to speak out against Reagan’s policies. Another ironic example occurred in 2012, when vice presidential nominee Paul Ryan expressed his fondness for the ultra-radical Rage Against the Machine. The band’s guitarist Tom Morello wrote a jaw-dropping op-ed in Rolling Stone saying that everything that Ryan represents is antithetical to what the band stands for, reminding Ryan that he is “The Machine.” Similar sentiments were dished out to 2008 veep nominee Sarah Palin, as Hall of Fame rockers Heart, led by sisters Ann and Nancy Wilson, lambasted the McCain/Palin campaign’s use of the band’s classic “Barracuda” (Palin’s alleged nickname) on the trail. McCain used the song anyway during his National Republican Convention appearance. Other notable objections to unauthorized uses of their songs in Republican campaigns have come from 80s hair band Twisted Sister, Hall of Famer David Byrne of the Talking Heads, and rapper K’nann and his song “Wavin’ Flag.” The latter was used by Mitt Romney, which in itself is actually pretty cool.
While several artists have eviscerated candidates for using their music as well as use the platform to openly oppose the candidate, some have pursued the matter through the courts. REM issued a cease and desist order to Fox News over the station’s use of its award-winning “Losing my Religion” during the Democratic National Convention in 2012. Likewise at the state level, Byrne sued former Florida Governor Charlie Christ for using his “Road to Nowhere” as an attack against fellow 2010 Senate candidate Marco Rubio during the primary campaign. Due to the suit, Christ recorded an on-air official apology for copyright infringement that was released online. Survivor’s Sullivan sued Newt Gingrich for using “Eye of the Tiger” during his 2012 run for the presidency in Illinois federal court, which ended in an undisclosed settlement. Gingrich had argued that he was protected under a general license from the American Society of Composers, Authors and Publishers (ASCAP). Other artists to sue candidates include Don Henley for his classic “Boys of Summer” used by California candidate Chuck DeVore and Jackson Browne against McCain for using “Running on Empty,” along with several others filing cease and desist papers, including Tom Petty and Katrina and the Waves against Michelle Bachman and Heavy D against Gingrich as well. None of the cases made it to trial, each resulting in a settlement or with the candidates dropping the use of the songs.
The copyright laws involving campaign music are murky, as Gingrich had argued. Generally, the costs of litigation aren’t worth the challenge in court. Sullivan for one said he will not take legal action this time against Davis and Huckabee, but did say that the use of the song was personal. Sullivan told Rolling Stone, “I do not agree with Kim Davis’ stance and do not believe in denying gay rights and the freedom for all individuals to choose the lifestyle they want to live. Our Constitution, and the words of our Founding Fathers, stand tall for freedom, which is what America is all about. I find it ridiculous in this day and age that this fight against gay marriage has gone on, even after the Supreme Court’s ruling. Let’s stop!” To help assist artists with the legal process, ASCAP has issued guidance on artists’ rights and the legal grounds for a court challenge. The fact sheet states that campaigns must have a “public performance” licenses to play a song at events; however simply having that license does not allow the campaign free reign on the song’s use. According to the guidance, artists can still have legal standing under the image-protecting “Right of Publicity,” as well as the Lanham Act’s provisions on the dilution of a trademark (such as a band or artist name). Finally, artists can argue “False Endorsement” if the context surrounding the use of the song implies that the artist supports a particular candidate or position. At the bottom of the document, ASCAP suggests that any campaign that wants to use a particular song should ask the specific artist and/or songwriter, along with the management and license-holder(s).
Sources:
CNN – Holly Yan
Good Magazine – Rafi Schwartz
Rolling Stone – Jason Newman
Time – Tessa Berenson
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