Stories of recent copyright issues involving the unauthorized use of music by political campaigns have hit the fan lately. ASCAP (American Society of Composers, Authors and Publishers) offers a wealth of info about these issues for those uninitiated in the wilderness of music copyright. ASCAP is a not-for-profit performance rights organization which protects its members' musical copyrights. It monitors use and then compensating members.
ASCAP notes that political campaigns need to "contact the song's publisher and possibly the artist's record label to negotiate the appropriate licenses."
ASCAP also warns that even if the campaign has appropriate copyright licenses, "if an artist does not want his or her music associated with the campaign, he or she may still be able to take legal action," under one or more of the following claims: Right of Publicity (in which image protection is provided for celebrities), The Lanham Act (which addresses confusion/dilution of trademark), or False Endorsement (in which use of the artist's work may imply endorsement.)
ASCAP says, ""Music possesses a unique power to inspire, motivate and energize a campaign."
Music associated with previous presidential campaigns include:
"God Save Great Washington" (parody of "God Save the King") - George Washington
"Happy Days are Here Again" (by Milton Ager and Jack Yellen, ASCAP members) - FDR
"They Like Ike" (by Irving Berlin, ASCAP member) Dwight Eisenhower
"Signed, Sealed and Delivered" (by Stevie Wonder, ASCAP member) - President Obama
According to npr.org, "Copyright experts say you don't have to ask an artist's permission to play a popular song at your rallies -- as long as the venue where you play it has what's known as a blanket license from the performing rights organizations ASCAP and BMI. Peter DiCola, who teaches law at Northwestern, says most public venues do have those licenses. But small or unconventional venues may not."
When Mike Huckabee and Kim Davis used Survivor's "Eye of the Tiger" during a rally for Davis' release from jail, Survivor strongly objected. According to CNN, co-writer Jim Peterik said he was "gobsmacked... We were not asked about this at all."
Suvivor: Jimi Jamison and Frankie Sullivan at the Sweden Rock Festival in 2013
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Peterik tweeted, "I have not authorized the use of Eye of the Tiger for use by Kim Davis and my publisher will issue a C&D. This does not reflect my views."
Co-writer, Frankie Sullivan posted on FB:
"NO! We did not grant Kim Davis any rights to use "My Tune -The Eye Of The Tiger." I would not grant her the rights to use Charmin! C'mom Mike, you are not The Donald but you can do better than that - See Ya really SoooooooonnnnnnN!!!!!!"
Salon interviewed intellectual property lawyer Joel Schoenfeld, a former counsel for the Record Industry Association of American and now an attorney at the New York firm Mitchell Silberberg & Knupp, who noted, "when that clerk in Kentucky and Huckabee were on an impromptu stage in front of a courthouse, I'd say the odds are that courthouse doesn't have a blanket license. I'm sure their use of "Eye of the Tiger" was a copyright infringement. Whether it will be enforced is something else."
Survivor had previously filed a lawsuit in January, 2012, against Newt Gingrich for using the same song at his political events. Perhaps no one in Huckabee's campaign researched that.
There is a long tradition of musical artists bristling at the unauthorized use of their copyrighted material, and more than a few successful lawsuits.
Jackson Browne sued the Ohio Republican Party for using the song "Running on Empty" in a campaign ad for John McCain in 2008. (He won an undisclosed amount and an apology.) Browne is a lifelong Democrat. Did they not check that out before using his music without authorization?
K'Naan's fans were upset, believing that K'Naan had authorized the usage, and K'Naan said that this was hurting his brand. K'Naan released this statement:
"I have not been asked for permission by Mitt Romney's campaign for the use of my song. If I had been asked, I would certainly not have granted it. I would happily grant the Obama campaign use of my song without prejudice."
Thereafter, the Romney campaign agreed to discontinue using the song.
In 2008 the band Heart protested the use of their song, "Barracuda" by John McCain and Sarah Palin, saying "The Republican campaign did not ask for permission to use the song, nor would they have been granted that permission. We have asked the Republican campaign publicly not to use our music. We hope our wishes will be honored."said:
"I feel completely (expletived) over...
"Sarah Palin's views and values in NO WAY represent us as American women. We ask that our song 'Barracuda' no longer be used to promote her image ... The song 'Barracuda' was written in the late '70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The 'barracuda' represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there's irony in Republican strategists' choice to make use of it there."
In 2011, when Michelle Bachmann used Tom Petty's hit "American Girl", his team sent her a Cease and Desist letter.
Petty also issued a "Cease and Desist" to former President George W. Bush for using "I Won't Back Down."
David Byrne, former singer of Talking Heads, filed a lawsuit for $1 million against former Florida Gov. Charlie Crist for using "Road to Nowhere" in an ad for Crist's Senate campaign. (It was settled for an undisclosed amount, and Crist was required to post a YouTube apology.)
The pro-union Dropkick Murphys were not happy with Scott Walker using their cover of the Woody Guthrie song, "I'm Shipping Up to Boston" as his entrance music at the Iowa Freedom Summit in January. They tweeted: "@GovWalker please stop using our music in any way... we literally hate you !!! Love, Dropkick Murphys."
Dropkick Murphys performing at The National Shamrock Fest in Washington, D.C.
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In 2012, when Wisconsin State Assembly member, Jeff Fitzgerald, used the same music, the band posted this to their FB page:
The stupidity and irony of this is laughable. A Wisconsin Republican U.S. Senate candidate - and crony of anti-Union Governor Scott Walker - using a Dropkick Murphys song as an intro is like a white supremacist coming out to gangsta rap! ... We stand beside our Union and Labor brothers and sisters and their families in Wisconsin and all over the U.S!
When Donald Trump announced his bid for the presidency to the Neil Young classic, "Rockin' in the Free World," Young's manager responded
"Donald Trump was not authorized to use 'Rockin' In The Free World' in his presidential candidacy announcement. Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States Of America."
When Donald Trump used R.E.M.'s "It's the End of the World as We Know It (And I Feel Fine)," singer Michael Stipe was a bit more colorful in his response, when he tweeted: "Go f*ck yourselves, the lot of you -- you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign."
It all makes one wonder, what is it about Democratic- and Liberal-leaning musicians' tunes that is so attractive to Republicans?
Democrats get these types of letters much less frequently. But even the Obama campaign got its come-uppance, delivered with more than a touch of class by Sam Moore, when they used Sam and Dave's "Hold On, I'm Comin'" without permission.
"Having been hit with rocks and water hoses in the streets, in the day with Dr. King as part of his artist appearance and fundraising team, it is thrilling, in my lifetime, to see that our country has matured to the place where it is no longer an impossibility for a man of color to really be considered as a legitimate candidate for the highest office in our land." But he respectfully asked the campaign to discontinue using his song, saying, "I have not agreed to endorse you for the highest office in our land....My vote is a very private matter between myself and the ballot box."