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As a new campaign season begins, politicians are facing a familiar problem as they clash with songwriters who do not want their music performed in conjunction with the candidate's campaign.
BNA spoke with experts on copyright and campaign issues to hear their opinions on the strength of copyright and false endorsement claims, as well as what to expect from future campaigns.
The most recent example of tension between songwriter and candidate was when Rep.Michelle Bachmann (R-Minn.) tangled with musician and songwriter Tom Petty. He objected to her use of his song “American Girl” in her presidential campaign by sending her a cease-and-desist letter.
Politicians have locked horns with songwriters for years, but the issue is still legally foggy due to political pressure forcing quick surrenders from the candidates. Recent cases include:
• Sen. John McCain (R-Ariz.) received cease-and-desist requests from both John Mellencamp and Abba. During his 2008 presidential campaign, he was sued by Jackson Browne for “Running on Empty” being used in a Youtube video by someone associated with the Republican Party Browne v. McCain, No. 2:08-cv-05334 (C.D. Cal., dismissed Aug. 4, 2009).
• Former Florida Gov. Charles J. Crist Jr. became involved in a lawsuit after using a Talking Heads song in a TV commercial to criticize his opponent, Marco A. Rubio, in a senatorial campaign. Byrne v. Crist, No. 8:10-cv-01187 (M.D. Fla., amended complaint Nov. 2, 2010).
• Don Henley sued California State Assemblyman Charles S. DeVore (R) for basing a parody song about DeVore's opponent on Henley's “Boys of Summer” in online videos during his campaign to get the Republican nomination for a California Senate seat. Henley v. DeVore, No. 8:09-cv-00481 (C.D. Cal., dismissed July 12, 2010).
Music used at rallies at large public venues is generally covered by the venue's license, and campaigns can purchase travelling licenses that include public performance rights for songs from performing rights organizations like the American Society of Composers, Authors, and Publishers.
“There is precedent for artists saying they can object to a song's use even though the campaign had a license,” Robert W. Clarida of Cowen, Liebowitz & Latman, New York, told BNA. “But I think it's wrong.”
A campaign's travelling license is like “a concert promoter's,” said Vinny Candilora, senior vice president and head of licensing at ASCAP. “The campaign reports the specific events they will hold.”
“There is almost always a copyright hook,” in these cases, according to Andrew Sparkler, director of Legal Corporate at ASCAP. “It would be interesting to see a case filed purely under the Lanham Act.”
A claim of implied sponsorship under the Lanham Act might be the most successful approach for the songwriters, Clarida said, as copyright claims will generally be covered by licensing. In cases of parody, such as Henley, the songwriter can be successful in arguing it was not fair use because he was not the target of the parody.
A false endorsement claim is a combination of a Lanham Act claim and a state-law publicity claim. Clarida, in an article co-authored by Sparkler, said that “even a licensed performance at rallies could potentially be actionable under the Lanham Act if it falsely implied some connection with, or endorsement by, the performer or songwriter.” 3 Landslide 6, Robert W. Clarida and Andrew Sparkler (November/December 2010).
“A good false endorsement claim is when the candidate is using just one as a theme song,” according to Michael A. Kahn of the Brickhouse Law Group, St. Louis. “If it's just one among eight songs played no one will assume the songwriter is associated with the candidate.”
Kahn added that because political speech is at the core of the First Amendment's protection, candidates are allowed “incredibly wide latitude, which makes courts scratch their heads when they balance protected political speech with copyright.” The political context is what distinguishes it from straightforward false endorsement claims in the world of advertising, he said.
However, not everyone thinks a false endorsement claim is a good idea. Ben Sheffner, a copyright attorney who worked on McCain's presidential campaign in 2008, told BNA, “I am skeptical that a false endorsement claim would succeed, and I think it would be a bad thing. It would really gum up the works for music licensing.”
Sheffner said that the point of a blanket license “is to avoid negotiating with individuals. Without a blanket license any restaurant or radio station would have to negotiate individual licenses with artists, and that is impossible.”
According to Sheffner, “there are extremes where artists have stronger claims. But it gets circular, as people's perception of whether something is endorsement depends on how the court defines endorsement.”
Several experts agreed that as campaigns focus on grass-roots work and use volunteers across the country, legal battles with artists will remain common.
“Campaigns are done on the fly, and advance people are not attorneys,” Sherwin Siy, deputy legal director at Public Knowledge, a public interest group, told BNA. “Volunteers are doing ads and social media work, not professionals.”
Sheffner said that “most political consultants would understand some rules of copyright. Young, enthusiastic supporters might think they can use anything they find online.”
Clarida added that there might be benefits for politicians to go ahead and use songs anyway.
“A political campaign is relatively short-term, and a candidate might want to go ahead and [use songs] now and pick up the pieces later,” he said. “Litigation eight months down the road is a long time for a campaign, and it gets their name in the papers.”
“It's a matter of people being careless, and they are going to [use music] whether the law says they can or not,” Clarida said, adding, “We can expect to continue to see claims in the area as campaign season heats up.”
“Music simply helps to draw crowds,” Candilora said. “It's hard to have a rally without music.”
“The up-to-the-minute news cycle makes songwriters and artists more aware of how songs are being used,” Sparkler said.
“It becomes a maddening version of whack-a-mole where [the artists] just have to keep monitoring,” according to Kahn.
Sheffner pointed out that the disputes about public performance of songs at rallies are not cases, but rather consist of a letter from a lawyer or a press release.
“I would be interested if one of these would ever make it to court,” like the cases that involve video, he said. “But most campaigns want to smooth it over and not get into a fight with rock stars.”
Sparkler is hopeful that campaigns have begun to learn their lesson.
“Because of what happened in 2008, and what just happened with Bachmann, because these stories are everywhere, my hope is that somewhere in the back of some staffer's mind a light goes off,” Sparkler said.
By Stephanie Latimer
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