In contemporary presidential campaigns in the United States, candidates routinely use popular music in ways that cause musical artists to respond negatively. Indeed, every four years, we now expect that at least some presidential candidates will become embroiled in controversy after a musician complains about their music being used illegally or inappropriately. If you have the feeling that this is a more recent phenomenon that did not always plague presidential campaigns, then you are correct.
Music has played a role in the pageantry of election campaigns since the days of George Washington, and for most of this time, candidates have avoided controversy and legal entanglements over their use of music due to several factors. First, politicians often had unique songs written for them. Second, candidates took advantage of the slow development of U.S. copyright law, which allowed them to borrow and appropriate musical material well into the nineteenth century. Finally, politicians sought out popular artists and composers to use their works at campaign events or, even better, to have the artists themselves perform their own music or variations of those works during the campaign.
Eighteenth- and nineteenth-century candidates typically set their newly penned, campaign-specific texts to preexisting tunes, many of which were associated with multiple sets of lyrics. For example, one of the best-known early campaign songs, “Tippecanoe and Tyler Too,” was sung to “Little Pigs,” a popular nineteenth-century song (Johnson 1884). In 1860, “Lincoln and Liberty” was set to the tune of “Rosin’ the Beau,” an old Irish drinking song (Schimler 2013; Silverman 2002). Since copyright law protected creative property considerably less than it does today, musical controversies did not arise as a result of such appropriations. Indeed, Congress did not include music publication under copyright protection until 1831, and those provisions exempted publications by foreign composers. Many of the popular tunes circulating in the United States were of British and Irish origins and, as such, were exempt from copyright protection. Musical performance was not protected by copyright law until 1897, and protection against unapproved playing of musical recordings did not take effect until 1972 (U.S. Copyright Office n.d.; Crawford 2001).
In many instances throughout American history, candidates avoided copyright pitfalls by using music created by their supporters, but this trend began to decline in the 1960s and 1970s. Drawing upon the successful use of popular music by social movements—including the civil rights, the feminist, and the Vietnam War protest movements (Hurst 2008)—presidential campaigns began capitalizing on star appeal and catchy, well-known lyrics by gradually beginning to use unaltered, preexisting popular music on a more regular basis. Well-known examples include Ronald Reagan’s utilization of Lee Greenwood’s “God Bless the U.S.A.” in 1984 and Bill Clinton’s adoption of Fleetwood Mac’s “Don’t Stop (Thinking About Tomorrow)” in 1992 (Safire 2008; Perlstein 2008).
Changing technology facilitated the use of preexisting popular music at rallies, and this practice is now commonplace. In 2012, incumbent Barack Obama used Bruce Springsteen’s “We Take Care of Our Own” and challenger Mitt Romney chose Kid Rock’s, “Born Free” (Caulfield 2012; Montgomery 2012). [i] In the current election, Katy Perry’s “Roar” has become somewhat of a battle cry for Democratic contender Hillary Clinton. While pop songs are standard fare, candidates, on occasion, have made some rather strange choices: Donald Trump has used Puccini’s “Nessun dorma,” a standard from the classical crossover canon, while fellow Republican contender Marco Rubio adopted “Something New” by house music duo Axwell /\ Ingrosso early in his campaign, but stopped after receiving a cease-and-desist from the artists (Thomas and Lucey 2015; Roberts and Jacobs 2015; Walker 2015). At a December event at Furman University the candidate made the following statement: “Electronic dance music — I’m a fan of. We just can’t play it ‘cause none of the DJ guys — they all send us letters, ‘Don’t play my music. I’m Swedish. I don’t care about American politics’” (Jaffe 2015).
With the wholesale employment of preexisting popular music in presidential politics in the 1980s and 1990s, the issue of allegedly illegal use of songs came to the forefront.[ii] Indeed, several candidates in recent years—including George H. W. Bush, George W. Bush, John McCain, and Barack Obama—have come under fire for indulging in this practice (Schoening and Kasper 2012; Rolling Stone 2015).[iii] Some of these cases have been settled with cease-and-desist orders, others through public objections in the media by the copyright holders, and, on fewer occasions, through lawsuits (Jones 2009).[iv] In the great majority of instances, the action has resulted in withdrawal of the song from the candidate’s campaign playlist, which has generally satisfied the complainant against the campaign. In addition to potential copyright infringement cases, complaints have arisen because candidates may have secured permission from a copyright holder who is not the musical artist, but the performer objects, claiming, among other things, an improper implied endorsement.
One of the first documented cases of alleged copyright infringement by a campaign occurred in 1996 with the band Chicago halfheartedly objecting to Bill Clinton’s use of its song “Beginnings.” It appears that Clinton secured rights from the publisher to play the song at the Democratic National Convention and even had the endorsement of some of the band members. However, the song’s composer, Chicago keyboardist Robert Lamm, did not support Clinton. According to one source, Lamm stated, “I am not endorsing Bill Clinton. There are probably candidates who have thrown their hats in the ring that I’m more aligned with, like Ralph Nader, but when I step into the [voting booth], it’s my informed, private decision” (M. Newman 1996). The press generated by the dispute probably did not harm the Clinton candidacy, but it did bring to the forefront the issue of implied endorsements and ownership of artistic property.
A much more dramatic reaction from an artist occurred during the 2008 election with Sarah Palin, when the GOP selected the 1977 song “Barracuda” by the rock band Heart for her intro at the Republican National Convention. The song was chosen for its title and lyrics as the Alaska Governor had earned the nickname “Sarah Barracuda” while playing high school basketball. After the song was played at the convention, lead singer Ann Wilson and guitarist Nancy Wilson claimed that the McCain-Palin campaign had not sought consent from them, Universal Music Publishing, or Sony BMG (Bertelsmann Music Group). As the Wilson sisters remarked, “The Republican campaign did not ask for permission to use the song, nor would they have been granted that permission.” McCain-Palin campaign officials countered with the following statement: “Prior to using “Barracuda” at any events, we paid for and obtained all necessary licenses.” This prompted Heart to offer a response of their own: “We have asked the Republican campaign publicly not to use our music. We hope our wishes will be honored.” When the song was played again at the same convention, the Wilson sisters issued the following statement: “Sarah Palin’s views and values in NO WAY represent us as American women…We ask that our song, ‘Barracuda,’ no longer be used to promote her image.” The McCain-Palin campaign apparently had obtained copyright permission to use the song because its public performance was licensed under a blanket fee paid to ASCAP by the hosting Xcel Energy Center in St. Paul, Minnesota, although this did not fully resolve the band’s issue of an unwanted implied endorsement (Michaels 2008; Goodman 2008).[v]
During the 2012 Republican primaries, Mitt Romney received some negative press for playing the song “Wavin’ Flag” by singer K’Naan at a rally he held the night he won the Florida Republican primary. According to a Romney campaign spokesperson, the song was used under a blanket license that the campaign had obtained. K’Naan, however, was upset, stating “I have not been asked for permission by Mitt Romney’s campaign for the use of my song. If I had been asked, I would certainly not have granted it.” In fact, the artist went on further to supply his own endorsement by stating, “I would happily grant the Obama campaign use of my song without prejudice.” While still claiming they did not violate copyright law, the Romney campaign decided to stop playing it within days, claiming the following: “The song was used through our regular blanket license, but we respect K’Naan’s statement and will not use his music again” (Paine 2012; “K’Naan” 2012). Ultimately, the campaign opted to respect the artist’s wishes, averting any unwelcome attention through a lawsuit.
A final example occurred in the summer of 2015 when Donald Trump joined the Republican Party’s presidential field, entering his kick-off rally to the song “Rockin’ in the Free World” by Neil Young. Young’s management soon released the following statement in response: “Donald Trump was not authorized to use ‘Rockin’ in the Free World’ in his presidential candidacy announcement…Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.” Trump’s campaign manager, Corey Lewandowski, challenged Young’s assertion, stating, “We’ve done everything legal and by the book…The Trump campaign for President wrote two checks, which were cashed, and signed two contracts: One was with ASCAP and the other was with BMI [Broadcast Music, Inc.]. We have two legally binding contracts in place that allow us to go to their repertoire of music and use those [tracks] legally” (Chappell 2015; J. Newman 2015).
Indeed, in addition to potential copyright law violations, a presidential campaign needs to be careful not to play music in a way that improperly implies a musical artist is endorsing the candidate. This issue of implied endorsement presents a relatively new problem for campaigns. It is often the songwriter and/or performer of the song who hold(s) its copyright. However, sometimes a person or entity other than the performer is the copyright holder, and the singer only performed the song. To complicate matters further, copyright holders generally belong to ASCAP, BMI, or other organizations that collect fees for the songs in their respective catalogues. “By law, ASCAP [and other such agencies are] required to grant a license to any business, including political campaign organizations, that requests it, provided all paperwork is in order” (J. Newman 2015).
This presents a quandary for modern campaigns and a challenge for songwriters. A campaign may think it is fully within its legal rights to use a song by securing a blanket license from the proper entity, but a musician can publicly announce that they never would have given permission if they had been asked. In fact, ASCAP warns political hopefuls of this potential issue as part of a website resource entitled “Using Music in Political Campaigns: What You Should Know.” In this document, ASCAP explains,
If an artist does not want his or her music to be associated with the campaign, he or she may be able to take legal action even if the campaign has the appropriate copyright licenses. While the campaign would be in compliance with copyright law for playing the music, it could potentially be in violation of other laws…As a general rule, a campaign should be aware that, in most cases, the more closely a song is tied to the “image” or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song’s usage in the campaign (ASCAP n.d.).
In such cases, candidates may have eliminated the legal battle over copyright but still might face negative publicity or a suit for improper implied endorsement. The relevant federal statute here is the Lanham Act, which enforces trademark protections and prohibits false advertising. For instance, when Donald Trump used Aerosmith’s song “Dream On” at campaign events in the fall of 2015, the band’s front man Steven Tyler objected (even though Trump had invited Tyler to the first Republican presidential debate and Tyler himself is a Republican). However, Tyler was not raising a direct copyright issue here; instead the letter to Trump’s campaign from Tyler’s lawyer specifically referred to the Lanham Act, indicating the lawyer’s opinion that Trump was falsely making the public think that Tyler and the band endorsed Trump for president (Sisario 2015). Actions like this may cause some voters to think that these are examples of dishonest politicians trying to ignore the law. Obviously, this can have a negative effect on a candidate’s image.
How do candidates avoid these issues?
First, candidates and their campaign managers can select songs by artists who represent them and their political ideas. By playing songs by artists who are more likely to support a candidate’s ideology, there is less likelihood that the artists will claim an improper implied endorsement.
Another strategy would be to approach the artist directly and secure permission to use the song. By doing this, a candidate can ensure the artist’s cooperation and, possibly, secure an actual endorsement. Further, a candidate may also be able to engage an artist to perform at a campaign event as a way to bring out a larger crowd to hear the message.
Overall, one of a presidential candidate’s main purposes behind using songs is to reinforce the campaign’s message(s), by creating congruity between lyrics and campaign rhetoric. However, campaigns have trended toward the use of popular music over the past few decades as a way to both a) take advantage of a song’s popularity, and b) to associate the candidate(s) with a popular celebrity artist. It is much easier for a campaign to gain traction with the voting public by using music that has already made its way into the mainstream pop scene, as opposed to commissioning original songs and trying to make them popular during the course of the campaign cycle.
In the end, music has a powerful effect on people, which explains why presidential candidates want to use it to help promote their messages.[vi] Whether it is copyright infringement or improper implied endorsement, these ostensibly illegal actions, and the possible negative publicity or lawsuits that may follow, risk distorting those messages. As a result, campaigns would be well-advised to make sure that their use of music falls within the law.
[i] Barack Obama’s 2012 Spotify playlist can be accessed at https://play.spotify.com/user/barackobama/playlist/6J9kgSvipjimfDLYTsCOAv; Mitt Romney’s playlist can be accessed at https://play.spotify.com/user/mittromney/playlist/5QrwBrWOXSWWdWilN98BPS.
[ii] This development coincided with a general rise of litigation over ownership of intellectual property.
[iii] See, e.g., George H. W. Bush’s use of Bobby McFerrin’s “Don’t Worry, Be Happy” in 1988, George W. Bush’s use of Sting’s “Brand New Day” in 2000, Barack Obama’s use of Sam and Dave’s “Hold on, I’m Comin’” in 2008, and John McCain’s use of the Foo Fighters’ “My Hero” in 2008.
[iv] See, e.g., Jackson Browne’s lawsuit against John McCain and the Republican Party for using his song “Running on Empty” in 2008. The suit was settled out of court for an undisclosed sum of money in 2009.
[v] ASCAP is the American Society of Composers, Authors, and Publishers. It is the firm that collects royalties on behalf of composers and copyright owners.
[vi] One need only look to books such as Musicopheia by late Oliver Sacks, This Is Your Brain On Music by Daniel J. Levitin, or Music, The Brain, and Ecstasy: How Music Captures Our Imagination by Robert Jourdain to get a glimpse of the power that music has to influence and affect people and why candidates would want to utilize this asset in their campaigns.
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