Presidential Campaigns Using Songs Without Permission Hit a Sour Note

Dorsey & Whitney LLP

Republican Presidential hopeful Donald Trump is “Not Gonna Take It”.  He recently received permission from Dee Snider to use Twisted Sister’s 1984 hit “We’re Not Gonna Take It” in his campaign.  Trump sought permission after being admonished by Steven Tyler of Aerosmith, R.E.M., and Neil Young for using their songs at campaign events without authorization.  Candidates that use songs without permission can open themselves up to more than a public rebuke and bad publicity.  Last month, Republican candidate Mike Huckabee’s campaign was sued for copyright infringement in Chicago federal court for using “Eye of the Tiger” at a rally.  The owner of the copyright for “Eye of the Tiger” also sued Newt Gingrich for his unauthorized use of the song in his 2012 campaign.

The American Society of Composers, Authors and Publishers (better known as ASCAP) published guidelines to help political campaigns secure the appropriate permissions before using a song.  The guidelines provide helpful pointers about the use of songs in campaign videos posted on the internet, as well as the possible need for campaigns to secure their own public performance licenses if a song will be played at a convention center, hotel or other campaign event venue. Further, as the guidelines note, even if a campaign secures the appropriate copyright licenses, they can still be subject to legal claims based on right of publicity, trademark infringement and/or false endorsement by an artist that does not want to be associated with a campaign.  For example, Sam Moore of Sam & Dave politely asked the Obama campaign to stop using the hit song “I’m Coming” because, as Mr. Moore put it, “I have not agreed to endorse you for the highest office in our land….My vote is a very private matter between myself and the ballot box.”  To avoid the legal turmoil, campaigns must negotiate with the artist, publisher, and record label that controls the recording.

So don’t be “Running on Empty” like John McCain in 2009 when he was sued by Jackson Browne for using Browne’s hit without authorization in a campaign video criticizing Obama’s energy policy.  Make sure all the permissions are “Signed, Sealed, Delivered” and get the artist on board.  Campaigns can create a compelling, winning message and memorable moments like Stevie Wonder singing his hit at the 2008 Democratic National Convention after Barack Obama accepted the Democratic nomination for President.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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