Lessons from campaigns accused of unauthorized use of songs

It’s a familiar tune. Every election year it seems we hear the chorus of protests from musicians who are not flattered that their music has been hijacked as the theme song of a political candidate. The song is always the same, and this year is no exception. The lesson politicians are learning publicly may be applicable to private sector entities as well. Last month, the owner of Survivor’s 1982 hit “Eye of the Tiger” sued Newt Gingrich, claiming that he has repeatedly used the song without permission since 2009. The copyright owner is asking the court to stop Gingrich’s use of the song at campaign rallies and to award money damages. Gingrich is not the only candidate in the Republican primaries to be accused of copyright infringement. Mitt Romney recently agreed to stop using the song “Wavin’ Flag,” after Somali-born musician K’naan cited political reasons for his demand. And last year Rep. Michele Bachmann received a cease-and-desist letter from musician Tom Petty, demanding that she stop using his song “American Girl” in her presidential campaign.  Apparently she was not the American girl he had in mind. Tom Petty has experience in this context, as he also sent a cease-and-desist to then-Gov. George W. Bush for using the song “I Won’t Back Down” at his campaign rallies. Other artists who have recently enforced their rights include David Byrne, who sued Florida Gov. Charlie Crist for using the Talking Heads’ “Road to Nowhere”; female rock band Heart, which sent a cease-and-desist letter to Sarah Palin over her use of “Barracuda”; and Don Henley, who sued Senate candidate Chuck DeVore of California for use of “Boys of Summer” and “All She Wants to Do is Dance.” Why is the unlicensed use of copyrighted music seemingly the norm for political campaigns? Why don’t campaign aides simply seek to license the rights? No doubt, the choice of a theme song is carefully considered. Is there no pause during this deliberation to ask if there may be laws against lifting an original creative work and using it for one’s own purposes? Easier to assume risk? It is counterintuitive that a person running for high office could be ignorant of the significant public policy issues involving intellectual property. Indeed, the complaint filed against Gingrich observes that he “is the author or co-author of over forty copyrighted works” and that “during his tenure in the United States House of Representatives, the Copyright Act was extensively amended.” Such facts help to support a claim for willful infringement that, if proven, could result in statutory damages of up to $150,000. They also undercut any excuse for not obtaining permission based on unawareness of copyright protections, which is not a legally acceptable defense to infringement in any event. Most likely, the reason politicians use unlicensed music is that it is easier to assume the risk of using the music of their choice than it is to seek permission. A zealous campaign manager surely envisions the crowd cheering as the perfect song thumps through the speakers while the politician emerges from the wings. Such a scene is more appealing than haggling over a license that may not be granted, or may be too costly, or may come with restrictions. Moreover, once the song has been used a few times, its connection to the campaign and the resulting impression on voters will have been made. Even if the owner of the song goes so far as to bring a lawsuit (which, until recently, has been rare), the campaign could respond by agreeing to stop using the song and picking a new song going forward. (Of course, it is also possible that the campaign could be liable for monetary damages.) It is no secret that vast swaths of the entertainment industry do not typically support conservative candidates. The numerous Republicans who have not sought permission may have simply assumed that permission would not be granted. Some campaigns may have paid for a blanket license from performing rights organizations (such as ASCAP or BMI) to use a wide variety of songs, but still face resistance from musicians who do not wish to be associated with the candidate. In that context, it is possible that such a musician may not be able to claim copyright infringement, but could argue that the use of a particular song creates a false association of sponsorship under the Lanham Act. That type of claim arises from trademark law and is based on the premise that a campaign’s use of a well-known musician’s song is false advertising if it implies that the musician is a supporter of the candidate. For example, in 2008, Jackson Browne filed a lawsuit against presidential candidate Sen. John McCain for unauthorized use of a portion of Browne’s “Running on Empty” in a campaign commercial. Browne alleged that the use implied his support for McCain, but “in light of Jackson Browne’s lifelong commitment to Democratic ideals and political candidates, the [use of the song constitutes] misappropriation of Jackson Browne’s endorsement.” Browne also claimed copyright infringement and violation of California’s common law right of publicity. The complaint alleged that “Browne’s distinct and readily identifiable voice is widely known and closely associated with Browne. As such, Defendants’ unauthorized use of Browne’s voice in the Commercial invoked Browne’s identity in the minds of the public.” The rationale of K’naan’s letter to Mitt Romney is similar. He said: “I got a flood of Twitter messages from people who assumed ... that I was now a supporter of Mitt Romney’s campaign ...  . I’m for immigrants, I’m for poor people, and they don’t seem to be what he’s endorsing. My song being his victory song didn’t seem quite right.” Determinations for in-house counsel The media coverage of an artist’s dispute with a politician inevitably takes the focus away from the campaign’s message, and instead highlights the candidate’s apparent disregard for the intellectual property rights of others. The impression left with some voters is that these candidates do not demonstrate respect for the laws that they hope to swear to uphold. The question of whether to seek permission to use a copyrighted work also frequently arises in the corporate context. For example, a company may want to use a particular song at a corporate event, or a copyrighted image at a trade show booth or in marketing material, or incorporate a clip from a You Tube video into an advertisement. While the marketing department may not stop to consider whether those types of uses could constitute copyright and/or trademark infringement, certainly an in-house counsel would have to make such determinations. Thus, any time there is the possibility of a third party’s original work being used in the corporate setting, it would be prudent to consider seeking a license from the copyright/trademark owner. Although seeking permission may not seem appealing, or even necessary, in the short term, it may serve companies and politicians well to avoid these increasingly public confrontations with popular artists.