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May Singers and Composers Stop Campaigns from Using Their Songs?

John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson.

1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances.

2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law).

3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.

4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one.

5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it.

6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.

Syd Henderson (mail):
Assuming the campaign is not violating the copyright, this strikes me as more of a matter of etiquette. And potential embarassment if the singer is giving concert fundraisers for your opponent, which Mellancamp may well.
2.15.2008 2:40pm
J. F. Thomas (mail):
Didn't the Reagan (or was it Bush I) campaign want to use Springsteen's 'Born in the USA'? Obviously without listening to anything other than the refrain.
2.15.2008 2:41pm
K Parker (mail):
Syd,

Presuming the song really is under the compulsory-licensing regimen (entering which is, of course, entirely voluntary on the original copyright-holder's part), which side do you think is violating etiquette? I'd say the holder, for wanting to renege on the deal they made in putting the song with ASCAP/BMI.
2.15.2008 3:08pm
Bender (mail):
J. F. Thomas: I understand the Clintons, Al Gore, and other Democrats of their ilk have sometimes played "The Star Spangled Banner" at campaign events. Obviously without any understanding at all of the lyrics.
2.15.2008 3:14pm
Jiffy:
As to practical politics, it seems insane for the additional reason that the songwriter might be moved, not merely to complain publicly, but to endorse some other candidate publicly. Maybe even write up a new version substituting the refrain "Vote for Hillary."
2.15.2008 3:15pm
Smokey:
Don't worry, be happy!
2.15.2008 3:17pm
CommentHer (mail):
What of causing the song to be broadcast over the networks? Any network liability?
2.15.2008 3:20pm
Bleh:
Always wondered whether the Clinton campaign in 1992 ever got official permission to use Fleetwood Mac's "Sweet Little Lies" as their theme song...
2.15.2008 3:27pm
ReaderY:
Fortunate that there are still areas left in life where people don't make decisions based solely on what their lawyers say, but considerations of their reputations with the public and other "soft" factors, not just raw fear of punishment, are still a basis for public thought and action.
2.15.2008 3:32pm
GD (mail):
Possible campaign finance violations?
2.15.2008 3:35pm
BandarBush (mail):
I disagree with your fair use analysis:


it would involve using an entire expressive work, in a nontransformative way, without paying the customary price.


The campaign never plays the entire song, often only the chorus. Thus, this factor could cut both ways and is probably a wash.
2.15.2008 3:38pm
Arkady:
Nice one, Bleh. Of course, the Clinton campaign used "Don't Stop (Thinking about Tomorrow)" -- which come to think of it is pretty much on the mark for Hillary right now, no?
2.15.2008 3:39pm
GD (mail):
IIRC, a Bob Roberts soundtrack was never released because Tim Robbins did not want conservatives playing the songs at their events.
2.15.2008 3:40pm
Thorley Winston (mail) (www):
IIRC, a Bob Roberts soundtrack was never released because Tim Robbins did not want conservatives playing the songs at their events.


I sense a candidate for this Sunday's song lyrics posting!
2.15.2008 3:53pm
Tony Tutins (mail):
The use in a political campaign violates the artists' freedom of expression by imparting a meaning to their works that the artists never intended, namely an implicit endorsement of the candidate. Further, the use may violate the artists' right of publicity, as with the Bette Midler soundalike or robot Vanna White cases. I don't see how, for example, the AARP could get away with using the Beatles' "When I'm 64" for an informal anthem, without receiving permission from the Beatles. "Fair Use" would be playing it one time, at one rally.
2.15.2008 4:14pm
Alan P (mail):

I understand the Clintons, Al Gore, and other Democrats of their ilk have sometimes played "The Star Spangled Banner" at campaign events. Obviously without any understanding at all of the lyrics.


Because Democrats are not interested in defending their Country?

This is the kind of comment that just pisses me off
2.15.2008 4:14pm
Eugene Volokh (www):
Alan P: I took the comment to be referring to the more martial passages, which I would think that many in the Democratic base would find to be too martial:

Their blood has washed out their foul footsteps' pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave ....


It might also be referring to the passages that are more religious than some in the more rigidly separation-of-church-and-state camp (which I suspect is overrepresented among the Democratic core, though certainly not the only view within that core) might prefer:

Blest with vict'ry and peace, may the Heav'n-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: "In God is our Trust."


Not a terribly incisive argument, I think, but my sense is that this was the argument being made.

Tony Tutins: The right of publicity won't generally be an issue -- the uses are generally noncommercial, and the dominant view of the right of publicity is that it's limited to commercial contexts (and it may be unconstitutional to apply it in noncommercial contexts, though that's not as open-and-shut).

As to the freedom of expression argument, that's a very broad view of freedom of expression, covering not just one's ability to say what one wishes, but one's ability to stop others from using those words to say what they wish. There is some authority for that broad a view, which I discuss and respond to in this article (PDF pp. 31-36), but it doesn't seem like a sound view to me. (Among other things, it would suggest that even fair uses, such as parodies, are violations of the original author's "freedom of expression.")
2.15.2008 4:33pm
J. F. Thomas (mail):
Not a terribly incisive argument, I think, but my sense is that this was the argument being made.

My sense was he was just being a dick. So I ignored him.
2.15.2008 4:54pm
Constantin:

McCain presumably wants to attract Mellencamp fans, not alienate them.

Those three people already said they're voting for Obama, so this is a moot point.
2.15.2008 4:54pm
DeezRightWingNutz:
Between I Will Always Love You and Born in the USA, there have been the VC has recently seen mentions of two of the most inaptly used songs around.

Any other nominees?
2.15.2008 5:31pm
Syd Henderson (mail):
K Parker (mail):
Syd,

Presuming the song really is under the compulsory-licensing regimen (entering which is, of course, entirely voluntary on the original copyright-holder's part), which side do you think is violating etiquette? I'd say the holder, for wanting to renege on the deal they made in putting the song with ASCAP/BMI.


The etiquette violation would be by people who are using the artist's words to endorse a cause the artist doesn't endorse and may in fact oppose, after the artist has requested them not to. It doesn't mean they can't do it, but it's rude.
2.15.2008 6:00pm
Syd Henderson (mail):
DeezRightWingNutz:
Between I Will Always Love You and Born in the USA, there have been the VC has recently seen mentions of two of the most inaptly used songs around.

Any other nominees?


"Every Breath You Take."
2.15.2008 6:01pm
UW2L:

But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.


That last clause isn't where I thought you were going with that sentence. The use may affect the market for the work, but so does the owner's denial of permission to use it. Campbell mentions that another reason we have fair use is because of market failures where a rights owner refuses to grant a license for reasons that aren't really about money or rights, but rather because "I don't want to license to someone who'll use the song to make fun of me." Maybe there's a stronger case to be made for permitting fair use to prevent market failures due to owners' reluctance to be parodied, than for applying fair use to this kind of situation. Even so, Mellencamp's request - assuming he made it because he doesn't like McCain (if he did, surely he'd be licensing the song or even letting McCain use it for free) - smacks of a Euro-style "moral rights" approach, which is pretty ironic coming from Mr. American Patriotism.
2.15.2008 6:19pm
Constantin:
Mondale and Reagan both sought to use "Born in the USA" in 1984. As noted several times here, it would appear neither actually listened to the song before so doing. Though, in fairness, Bruce Springsteen--who has been referred to by one critic, in the most spot-on description in history, as a "white minstrel show"--pulled one of his usual both-sides-of-the-fence deals in marketing the song and album, so one could almost be forgiven for missing the song's true meaning.
2.15.2008 6:32pm
Joshua:
Constantin: Mondale and Reagan both sought to use "Born in the USA" in 1984. As noted several times here, it would appear neither actually listened to the song before so doing. Though, in fairness, Bruce Springsteen--who has been referred to by one critic, in the most spot-on description in history, as a "white minstrel show"--pulled one of his usual both-sides-of-the-fence deals in marketing the song and album, so one could almost be forgiven for missing the song's true meaning.

Not to mention that Springsteen's closing statement from that song was "I'm a cool rockin' daddy in the USA", not exactly the kind of lyric one would expect to find in a song written from the perspective of a suffering Vietnam vet.
2.15.2008 7:09pm
Antinome (mail) (www):
I am with Smokey, "Don't Worry, Be happy" is the most wildly inappropriate song I have heard from a campaign. The whole song is about about things going wrong, but hey don't worry, be happy.

But even if it didn't have those lyrics, the sentiment of "Don't worry, be happy" from a presidential candidate was amazingly Orwellian.
2.15.2008 7:09pm
Thorley Winston (mail) (www):
Mondale and Reagan both sought to use "Born in the USA" in 1984. As noted several times here, it would appear neither actually listened to the song before so doing.


I'd wager that most people who have listened to and enjoyed the song probably don't remember any part of the lyrics besides the chorus.
2.15.2008 7:41pm
Eric Jablow (mail):
Bill Clinton used "Born in the USA" in his 1996 campaign too.
2.15.2008 7:54pm
PGofHSM (mail) (www):
"so one could almost be forgiven for missing the song's true meaning"

If one misses every single verse and hears only the choruses, sure. Or is George Will, and hears the verses about hard times and closed factories, yet is incapable of grasping the phrase "Born in the USA" as a complaint against current treatment rather than as a declaration of rousing optimism.

Mondale's campaign inaccurately claimed to have been endorsed by Springsteen after he rebuffed Reagan, but as far as I know, they didn't use "Born in the USA." Neither did Reagan -- the problem arose when he was campaigning in NJ and talked about how his message was like Springsteen's "message of hope." Springsteen was pissed off and pointed out that it didn't feel like morning in America in the decayed areas he was singing about.

Eric,

When you say Clinton used the song in his campaign, do you mean it was sometimes part of the mix played during campaign stops (as Billy Joel's "Captain Jack" was for Hillary during her Senate campaign, creating a great distraction for Giuliani &Co.) or that he used it as a campaign theme like "Don't Stop (Thinking About Tomorrow)"? Reagan specifically invoked "Born in the USA" and Springsteen while he campaigned in NJ, which is a much bigger grab for associating oneself with a pop culture icon than simply using some Springsteen music mixed with many other songs.
2.15.2008 8:38pm
Randy R. (mail):
God forbid any candidate should use the Ode to Joy theme in Beethovan's 9th. It's copyright free, but it's call for a 'brotherhood of men', peace, understanding and so on, would be seen as laughable, cynical, bizarre, or intolerant, depending upon who used it.

Certainly, Beethovan was naive fool, right?
2.15.2008 10:19pm
BGates:
McCain should start using 'Born in the USA', if only to hear the complaint Springsteen comes up with.
2.15.2008 10:34pm
Darrin Ziliak:
Didn't the 1984 Reagan campaign want to use Mellencamp's Pink Houses as a theme?
I have a vague memory (I was 17 at the time) of some kind of controversy over it and that the Reagan people wound up using Lee Greenwood's God Bless the USA instead.
2.15.2008 11:37pm
TN DC Atty (mail):
The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues).

This is an entirely reasonable statement of the law, but I wouldn't bet on a federal court agreeing. A federal court would find that "ham" is likely to cause confusion with "sandwich."
2.16.2008 3:21am
NicholasV (mail) (www):
This is a bit off topic, but I don't think Beethoven composed the Ode to Joy, someone else did and he liked it so much he used it in his 9th Symphony. I bet Wikipedia or some similar site will have the details.

I'm curious, now I'll have to look up how much longer he lived after composing that (great) symphony. It can't have been too long.
2.16.2008 3:32am
NicholasV (mail) (www):
OK, it seems he composed the music, but most (not all) the lyrics are from a poem by Schiller.

He lived about three years after composing the 9th.
2.16.2008 3:38am
Uthaw:
I think politicians should stop using music, and musicians should shut up about politics.
2.16.2008 1:41pm
Barry P. (mail):
Darrin Ziliak: I remeber the "Pink Houses" case too. Mellencamp wondered whether anybody in the Reagan campaign had actually stopped to think about the lyrics - a testament to the bitterness of dreams being dashed.
2.16.2008 4:50pm
Bruce Hayden (mail) (www):
I think that EV addressed the situation pretty well. ASCAP/BMI is unlikely to put themselves in the situation of block licensing based on political considerations, and the likely solution would be to just license through them - and as noted, the various venues probably already have the requisite licenses. And of course, if the campaigns got licenses, the artists would be SOL, due to the exhaustion doctrine.

But the political reality is likely the overriding concern here. If the artists involved all feel strongly about a campaign playing their music, the campaigns would be silly to continue to do so. I wouldn't call it ethics, because I don't see ethics having any role here, but rather a question of whether playing that song would gain as many votes as the bad publicity would lose, and I think the bad publicity would win hands down.
2.16.2008 10:27pm
EIDE_Interface (mail):
I have a theory as to why 99.999% of musicians are hard-core leftists. The same process by which they write songs, is very intuitive, emotional. They are the same way when they look at the world. Reason and logic never enter the picture.
2.18.2008 5:02am