Music and Politics Series: Campaign Music – Politician vs. Musician

Image by Jeanne Rene

As a music attorney, much of my professional interests concern the politics of music.  On the brink of the 2012 Political Season, I’m bringing this “Music and Politics Series” to spruce up my professional life by taking a look at the music in politics.

Some people argue that politics is a business.  After all, a capitalistic society could easily force its government to operate under standard business principles.  To others, politics is nothing more than amusement.  Even President Ronald Regan is known for saying, “Politics is just like show business.” To no one’s surprise, political ads mimic typical commercials: aesthetically and aurally drawing the attention of the public.

The music industry has had a tumultuous relationship with politics.  Political ads are regularly accompanied by the tunes of well-known musicians, and politicians often use these tunes to create their political theme song.  To the passive observer, the songs are catchy and memorable; but to many musicians, use of the songs are not authorized.  To welcome the upcoming barrage of political ads, let’s look at some of the reasons why musicians have a love/hate relationship with politicians:

  • In the 1978 case Keep Thomson Governor Comm. V. Citizens for Gallen Comm., the court ruled that a candidate’s use of 15 seconds of his opponent’s campaign theme song is fair use because the portion of music used was small and because the purpose of the use was political debate.
  • The group the Hearts objected to the use of their song “Barracuda” during the 2008 Republican National Convention.  The song served as Sarah Palin’s entrance song when the former vice president hopeful accepted her GOP nomination, being broadcasted to an estimated 50% of US households.  Use of the song, however, was perfectly legal despite the artists’ objection.  The RNC purchased a venue-based blanket license from the American Society of Composers, Authors and Publishers (ASCAP), granting the RNC the right to perform the song publicly.
  • Jackson Browne sued John McCain in 2008 for the use of his song “Running on Empty” in McCain’s presidential campaign ads.  As a result, the Republican Party apologized for the use and pledged to get artists’ permission to use songs in future ads.
  • Continuing on McCain’s campaign trail, the Senator’s 2008 presidential campaign spurred additional cease and desist letters from Van Halen, Foo Fighters, Frankie Valli, ABBA, Bon Jovi, and John Mellencamp.
  • The 2008 presidential race had its share of bipartisan unauthorized uses.  President Barak Obama’s campaign avoided possible legal action by voluntarily ending the use of the song “Hold On, I’m Coming” by Sam & Dave after Sam Moore voiced his complaint.
  • Don Henley of the Eagles sued former California Senate hopeful Charles DeVore for false association and endorsement under the Leham Act, as well as unfair business practices and copyright infringement.  DeVore used the songs “The Boys of Summer” and “All She Wants to Do is Dance” in two YouTube videos in which the songs were rewritten to criticize President Obama and US House of Representatives Minority Leader, then Speaker of the House, Nancy Pelosi.  The videos were found to constitute infringement.
  • The Talking Heads sued Florida Governor Charlie Crist  for the use of the “Road to Nowhere” in an internet ad for Crist’s senate primary campaign.  Crist denied intentional infringement, claiming that he thought the company that produced the ad had obtained the necessary licenses; the production company pointed fingers the other way.  The matter settled out of court, and Crist apologized.
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