Campaigns not careful about song picks
Michele Bachmann’s rise in the presidential polls may be unexpected, but her campaign’s being asked to stop playing “American Girl” by songwriter Tom Petty comes as no surprise.Almost like clockwork each election cycle, politicians get into trouble for unauthorized use of music, which speaks to the power of classic hits to drive home a message. Bill Clinton had Fleetwood Mac’s “Don’t Stop (Thinking About Tomorrow)” and John Kennedy enlisted Frank Sinatra to croon a customized “High Hopes,” but the trouble starts when a candidate adopts a work without first telling the songwriter or recording artist. The much-publicized Bachmann incident is not the first time that a campaign has run afoul of public performance copyrights, and it wasn’t even the first time that Petty has tried to put a stop to it. He balked at George W. Bush’s use of “I Won’t Back Down” at campaign events in 2000. In a business where star artists lean to the left, Republicans complain that they are being singled out while Democrats rarely get angry letters threatening legal action. There is some truth to it. That’s because artists are not just concerned about copyright law, but false endorsement, or the impression that voters may have that a politician has received permission by a songwriter or a singer, and therefore support their political stances. Petty’s manager, Tony Dimitriades,declines to elaborate on the incident. “The only thing I can tell you is they are not playing it anymore,” he says. Hillary Clinton also used the song in her presidential bid, but “she requested and got permission,” he adds. While campaigns often do have copyright permission to use music in certain venues with a blanket ASCAP or BMI license, the stakes get even higher when a song is used in a commercial or Web video without permission. In 2008, Jackson Browne, a supporter of then-candidate Barack Obama, sued John McCain for using “Running on Empty” in a campaign ad. As it turned out, the spot was run by the Ohio Republican Party, but the suit ended in what sources said was a six-figure settlement with the Republican National Committee, along with a public apology. Last year, Don Henley won a judgment against Chuck DeVore, a candidate for U.S. Senate in California, for using a takeoff of “Boys of Summer” and “All She Wants to Do Is Dance” in campaign Web videos. DeVore had defended the videos as a parody, and therefore a fair use of a copyrighted work. But a federal judge didn’t buy it. Earlier this year, David Byrne reached a settlement with former Florida Gov. Charlie Crist after he used “Road to Nowhere” in an advertisement during his campaign for governor. The settlement amount was undisclosed, but part it included a videotaped apology from Crist that had the feel of a hostage reading off a captors’ statement at gunpoint. Democrats do run afoul of artists — albeit with less of a public blowout. Obama used “Hold on, I’m Comin’” in 2008 campaign events until Sam Moore of the duo Sam & Dave, who recorded the song, requested that he stop. Given the potential for embarrassment from a campaign, why does it keep on happening? “They just think music is free like a lot of other people on the planet (do),” says Lee Phillips, senior partner at Manatt, Phelps & Phillips, who represents a number of music clients. Campaigns have a thirst for an instantly recognizable theme that only reinforces their message — the pithier the better — and the not-too-small issue of legal rights often gets overlooked in the zeal to draw attention. Nevertheless, the choice of a theme song “is the most over-thought decision a campaign makes,” says Jennifer Palmieri, president of the Center for American Progress Action Fund who was press secretary for John Edwards’ 2004 campaign and for the Democratic National Committee. “Everyone has a view, everyone has an opinion.” In 2007 a great deal of planning went in to the Clinton campaign’s “pick-your-own theme song” contest, but the winner, Celine Dion’s “You & I,” used with permission, nevertheless turned out to be a bust and was dropped by the time primary season began. Ever since Bruce Springsteen publicly objected to Ronald Reagan’s use of “Born in the USA” for his 1984 reelection campaign, artists have been more active in protecting their music on the campaign trail. Four years later, George H.W. Bush co-opted Bobby McFerrin’s “Don’t Worry, Be Happy” as a kind of anthem of his campaign, before the singer publicly expressed his displeasure, ordered him to stop — and even dropped it from his own playlist. What’s different today is that it is usually an artist trying to protect decades-old work — a testament to campaigns’ insistence of mining songs that have stood the test of time. Older lyrics “tend to be less controversial,” Palmieri notes. They’ve also been around long enough that their edginess has given way to nostalgia. As Palmieri recently pointed out in a Politico essay, a message in the lyrics of “American Girl” is disappointment, not American exceptionalism. A recent favorite has been Journey’s 1981 hit “Don’t Stop Believin’. ” The song seems especially suited to a political campaign, but writers Steve Perry and Journey were none too pleased when they got word that Newt Gingrich had used it at an event. Their attorneys sent a cease and desist letter, says Phillips, who represents Perry. “Our position is that you are tying in the performer with the politician’s position, and that is a false endorsement,” says Phillips, adding that it is a “personal choice to the people who own the song.” In April, Journey’s legal team filed suit against Adalah NY, a pro-Palestinian group that organized a flash mob at Grand Central Station in which activists sang and dance to a variation of the song, “Don’t Stop Boycottin’. ” The YouTube version became a viral hit.In a recent article for the public interest group Public Knowledge, Meredith Filak wrote that campaigns face a web of rights issues, starting with the fact that the singer of the song may not be the songwriter. While a campaign may be on solid legal footing when they play music at a venue with an ASCAP or BMI license, which accept payments on behalf of the songwriter, the recording artist may still go public and complain or even claim that their rights of publicity were violated. When it comes to web videos, some campaigns have argued that the use of music is “fair use,” but that is also a legal crapshoot. The best defense against an artist backlash is to get permission first. Phillips has his own idea for campaigns: Create original music. It doesn’t get nearly the same attention, but the songs can have a kitschy shelf life. See YouTube, and Richard Nixon’s attempt to go hip with a 1972 spot, “Nixon Now.” You may never forget it.