Presidential campaigns hitting a sour note?: Candidates using pop songs face IP issues

March 17, 2008

Presidential

campaigns hitting a

sour note? Candidates using pop songs face IP issues

While this may be "Our Country" and you may have been "Born in the U.S.A.," that doesn't mean you can use those tunes in political campaigns without venturing "Into The Great Wide Open" of intellectual property law.

Political candidates have been discovering this truth for decades as they've used musical hits at political rallies and campaign events, including the 2008 presidential election season. Wherever people gather to cheer on a candidate, there's usually a charttopping song blaring in the background to warm up the crowd and send a message.

But Hoosier attorneys practicing in the intellectual property realm say candidates should be more aware of their song choices because the issue boils down to more than the toe-tapping beats or catchy phrases that go along with the music.

Artists who don't want a particular candidate using their music might have a legal remedy thanks to copyright law and rights to publicity, though IP attorneys quickly point out that the First Amendment could be the principle that puts a damper on any artists' legal objection.

"We're not concerned here about an artist's objections to someone playing a song for the sake of the song; what we're really talking about is some type of potential for false endorsement," said Jonathan Polak, chair of the intellectual property group at Indianapolis firm Sommer Barnard. "This isn't about the law; it's about embarrassing candidates on policies they don't agree with. But yes, they have a legal leg to stand on."

Intellectual-property issues have found their way into current presidential candidates' campaigns, particularly use of copyrighted music at political rallies.

A month ago, Republican candidate John McCain agreed to stop playing Hoosier rock star John Mellencamp's songs "Our Country" and "Pink Houses" after the liberal rocker learned his music was being played at campaign events. Meanwhile, the lead songwriter and founder of the band Boston raised a similar objection to presidential hopeful Mike Huckabee using the 1970s classic "More than a Feeling" without permission.

The same issue arose in 2004 when John Hall of the band Orleans accused President George W. Bush-running for re-election-of using 1976 hit single "Still the One" without his permission. Hall got a cease-and-desist order, saying that use of the song constituted a clear copyright infringement.

Artists argue that whenever a candidate publicly uses a wellknown song, that politician is somehow implying an endorsement or support. Polak noted that copyright infringement could raise an interesting damages model. If a candidate used music at a dinner event and raised $10 million, the artist could be entitled to some proceeds from that event for using the music or song lyrics to raise that money, he said.

More interesting than a copyright issue, though, is a right-of-publicity possibility, Polak pointed out.

While candidates likely have other ways to get their message out rather than connecting themselves with phrases, songs, or artists, Polak noted that courts would probably have a tough time limiting free speech in the political-speech context on music use.

"Provided you could get around freespeech issues, and that may be a big 'if,' you may have a garden variety of right of publicity," he said. "But those rights of publicity around the country are very cognizant of First Amendment issues. That's a tough battle."

Seeing both sides

Charles Meyer with Woodard Emhardt Moriarty McNett & Henry said he sees both sides of the legal issues and could argue it both ways.

"I have difficulty believing that someone would expect that a musical artist is endorsing a candidate merely if that music is played once in the background at an event," he said. "But if it's a well-known piece of music by a famous artist and that song is played so often it becomes a theme song for the candidate, people might start asking if there's a connection."

The fact that many celebrities do endorse candidates would make this a reasonable question to ask, Meyer said.

That's what rock stars have noted recently. Mellencamp sent a letter to McCain's campaign that explained Mellencamp is a liberal who'd previously supported former Democratic candidate John Edwards.

Boston's Tom Scholz wrote to Huckabee that the band had never endorsed a political candidate and wouldn't start by supporting a candidate who was the polar opposite of what the band stood for.

If this rose to the level of litigation, Meyer pointed to a possible defense that use of someone's image or character traits in a political campaign isn't actionable because the use isn't related to commerce. A federal court in Wisconsin last year could be cited, he said.

In Griffith v. Fenwick, a sheriff candidate changed his name to Andy Griffith for his election campaign, to imitate the law enforcement character played by the real Andy Griffith.

The court dismissed the suit on the basis that there was "not a scintilla of evidence" that anyone thought the real Andy Griffith was running for county sheriff, nor that the real actor supported the candidate in his quest to become sheriff.

Attorney Robert Meitus with Indianapolis firm Meitus Gelbert Rose uses political music in one of the entertainment and IP law courses he teaches at Indiana University School of Law-Bloomington.

On one hand, songwriters have composition rights to control public performance regulated through licensing, Meitus said. A trio of licensing agencies regulates how that music is used, such as in a stadium, on the outside of a building, or on a public radio station. Candidates or the venue can purchase licenses to use music, he said.

Beyond the music

The campaign music issue is similar to how some churches were pressed about showing the 2007 Super Bowl without adequate licensing for large, televised events, according to Meyer.

But some uses involve more than public performance or playing of that music, Meitus added. For example, former President Clinton used music in his campaign and included montages of film synchronized with music.

"That implicates a whole different realm of rights," Meitus said, noting that the use is called adaptation and involves getting permission from copyright holders for a specific use.

"Technically, it may be infringement and there's no exceptions. But practically speaking, [a candidate] could play a song for an entire campaign without songwriters really being able to do much. The key is if they're doing anything more than just publicly playing it."

Without a blatant violation of the law, Meitus noted the use and resulting objections simply become an inconvenience for the candidate because of the publicity involved.

"It's hard to say what could happen, but the practical aspect trumps the law," he said.

Dan Leuders, also with Woodard Emhardt, finds it ironic that musicians would complain if the political process curbed freedom of expression in their music, yet they're seeking to curb freedom of expression in the political process.

"I'd think and hope that a federal court would cite the authorities of the First Amendment and fair-use law and tell musicians, 'You fight authority, authority always wins,'" Leuders said, citing lyrics from Mellencamp's "Authority Song."
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