What is it with Republicans and musical artists?
Bruce Springsteen got piping mad when Ronald Reagan used “Born in the U.S.A.” on the campaign trail in 1984. Then Tom Petty threatened to sue George W. Bush in 2000 when the then-presidential hopeful co-opted “I Won’t Back Down.” And earlier in this year’s primaries, the guitarist from the band Boston got miffed because Mike Huckabee was playing bass (yes, playing bass) on “More Than a Feeling” on the road.
Cease-and-desist letters from musicians have rained down like confetti on Republicans over the years. But nothing compares to the virtual commune full of left-leaning artists who are mad at John McCain right now, though, in most cases, they have no legal basis to stop him from using their songs.
Let’s start with the band Heart, whose thumping 1977 hit “Barracuda” was blasted in the Xcel Energy Center just after McCain’s acceptance speech at the Republican National Convention as the vice presidential nominee, Alaska Gov. Sarah Palin, joined him amid dropping balloons. The song was meant as a cool tip of the hat to Palin’s nickname, “Sarah Barracuda,” when she was a cutthroat high school basketball star.
It could have been to the 2008 Republican ticket what Fleetwood Mac’s “Don’t Stop (Thinking About Tomorrow)” was to the Democratic ticket in 1992: a fun and inspiring anthem that would cue up and roll in voters’ heads to positive effect whenever they laid eyes on the vice presidential pick.
Instead, it backfired. The day after McCain’s speech, Heart’s labels, Universal Music and Sony BMG, released a statement asking the campaign to, well, cease and desist.
“The Republican campaign did not ask for permission to use the song, nor would they have been granted permission,” Heart’s Ann and Nancy Wilson wrote on their website. “We have asked the Republican campaign not to use our music. We hope our wishes will be honored.”
They weren’t. The McCain campaign responded by continuing to use “Barracuda” on the trail. “I feel completely f——- over,” Nancy Wilson wrote to Entertainment Weekly.
Van Halen is not happy, either. Right before McCain unveiled Palin as his vice presidential pick in Dayton, Ohio, his team played Van Halen’s “Right Now.” A few hours later, the band’s publicist announced that the campaign was never granted permission to use the track, and said that had permission been sought, it would not have been granted. Ouch.
And then there’s John Mellencamp, who had his agent call the McCain campaign when he learned it was using “Pink Houses” and “Our Country” on the trail in February. “John said to me, ‘Don’t they know whose songs these are? Please tell them who I am: a left-wing Democrat,’” said Bob Merlis, Mellencamp’s agent.
Then John Hall, co-founder of the band Orleans and coincidentally a Democratic New York congressman, asked the McCain camp to stop using “Still the One” early this summer.
What do all the cease-and-desist letters and testy calls amount to legally, though? Not much, if the songwriters licensed the public performance rights to their music to the American Society of Composers, Authors and Publishers or Broadcast Music Inc. And the vast majority of artists, including Heart, have done that. Buying an ASCAP or BMI license allows a venue (or a campaign, if it purchases a traveling blanket license) to play any of about 8 million songs during their events. Though it might be a nice courtesy, the licensees are not obligated to call the artist to discuss.
The McCain-Palin campaign told Politico that in 2007 it purchased both ASCAP and BMI licenses that cover the use of tunes for all public events. Campaign spokesman Ben Porritt said, “Our campaign respects copyrights and obtains licenses whenever the law requires, and any suggestion otherwise is flat wrong.”
Though an ASCAP or BMI license is usually all it takes out on the campaign trail, if artists are really mad and feel the use of their music appeared to be an endorsement by them, the artist can sue under various states’ laws about right of publicity, charging false advertising. Another option would be to sue under the Lanham Act, in relation to trademark law.
In the case of “Barracuda,” “You could argue that this is a form of implied endorsement by the members of Heart, and the writers of the song, and you need their permission to do that,” explained longtime music industry copyright lawyer David Altschul.
None of the artists who have spoken out against the public performance of their songs for McCain’s campaign appearances have taken this tack yet.
On the Obama side? So far, no such trouble from the mostly left-leaning musicians whose songs he uses. An Obama campaign spokesman told Politico, “We haven’t heard any complaints from any of the artists whose music we’ve used at any of our events,” and that includes Brooks & Dunn, whose anthemic country song “Only in America” was played just after Obama’s acceptance speech in Denver. Interestingly, that particular tune had been widely used by Republicans in previous campaigns.
A whole other ball of wax, so to speak, from playing someone’s song at public events is using an artist’s work in campaign ads. On that front this year, McCain has gotten slaps from Jackson Browne, Mike Myers and Warner Music over a Frankie Valli hit.
The biggest slap: In August, ultra-liberal singer/songwriter Browne filed suit against McCain, the Republican National Committee and the Ohio Republican Party for using “Running on Empty” in a TV ad that ran in Ohio and Pennsylvania mocking Obama’s suggestion that Americans conserve gas by checking their tire gauges. Browne said the ad created the impression that he supports the campaign, which he emphatically does not. Damages sought could run in excess of $1 million.
The McCain campaign told Politico that questions about the ad should be taken up with the Ohio Republican Party. Lawrence Iser, Browne’s attorney, countered that there is evidence of a close working relationship between the Ohio GOP, the RNC and the McCain campaign. The matter is pending; all three defendants’ responses to the suit are due in late October.
As for Myers, last month the comedian/actor asked that the Arizona Republican Party take down a Web ad that used a “we’re not worthy” clip from his movie “Wayne’s World” to mock Obama’s popularity. The ad was retooled without the “Wayne’s World” clip and re-posted. McCain’s campaign used a similar remedy after Warner Music in July asserted a copyright claim against YouTube for running a McCain fundraising campaign fave known as the “Obama Love” video. The video used Valli’s hit “Can’t Take My Eyes Off You” without permission. The campaign has re-posted the video, but without Valli’s croonings.
Iser, Browne’s attorney, said that synchronization rights must be secured to edit a song or part of a song to sync up with video. To use a sound recording of a certain artist with an ad, a master-use license must be purchased.
The McCain camp doesn’t agree. A legal adviser to the campaign said that using a short clip of a song or a short excerpt of copyrighted video falls under fair use. Under U.S. copyright law, the fair use doctrine allows limited use of copyrighted material without requiring permission from the rights holder, for certain purposes such as teaching or critical review.
The Obama campaign hasn’t been without a touch of embarrassment in the music department. Just a few weeks ago, it reworked Sam Cooke’s “(What a) Wonderful World” (think: “Don’t know much about history ... ”) for an ad that asserts that McCain, well, you know. The publisher of the song, Abkco Music, issued a statement saying the partisan views of the message don’t necessarily reflect the views of Abkco.
For the most part, rather than being a legal issue, this is looking far more like a bad PR issue for McCain. Except for rapper Daddy Yankee, country singer John Rich (of Big & Rich) and “country rapper” Cowboy Roy, as well as some Christian singers, McCain seems to be striking out with musicians — publicly.
“If an artist says ‘Please stop’ and you keep using their song, it looks arrogant and unseemly, which is not what the Republican Party needs right now,” said Robert J. Thompson, a pop culture expert and director of the Bleier Center for Television and Popular Culture at Syracuse University.
He added that the McCain campaign’s manhandling of songs, such as “Barracuda,” could backfire. “It’s like if Burger King used a song in its ads from an artist who sings, ‘I hate Burger King.’ Every time you hear it, it cues you to think, ‘There’s that cool song by that artist who is a Democrat and doesn’t want McCain using their song.’ It serves as an anti-endorsement.”
One musician who is not upset is Roger Fisher, the Heart guitarist who wrote “Barracuda” along with Ann and Nancy Wilson 31 years ago.
“I don’t like having anger and resentment,” he said. “I would like to see this in a positive light. It’s positive for McCain in that he gets to use a great song. It’s positive for Ann and Nance because it allows them to shine a global spotlight on who it is that they do endorse. And it’s positive for Democrats because I’m going to donate some of the royalties I get from this to the party. It’s a way for me to turn the tables and have the Republicans financing Barack Obama.”