As the presidential election season heats up, so are the legal claims of musicians who object to the use of their songs in connection with election campaigns. So far this election year, the Silversun Pickups, rapper K'Naan, and Twisted Sister's Dee Snider have all objected to the use of their songs "Panic Switch," "Wavin' Flag," and "We're Not Gonna Take It" at Romney-Ryan political rallies. Upon hearing that Paul Ryan was a fan of Rage Against the Machine, guitarist Tom Morello wrote a scathing op-ed letter entitled, "Paul Ryan is the Embodiment of the Machine our Music Rages Against," published in Rolling Stone.
Prior election campaigns have also received cease and desist letters and even been served with a few lawsuits brought by musicians objecting to the use of their songs at campaign rallies and in political advertisements. The McCain campaign received cease and desist letters from both the Foo Fighters and the band Heart objecting to the use of their songs "My Hero" and "Barracuda" at campaign rallies. During an ultimately unsuccessful Senate campaign, former Florida governor Charlie Crist was sued by the Talking Heads when their song "Road to Nowhere" was used in a web video targeting Crist's opponent, Marco Rubio. As a condition of settlement, Crist was required to post this awkward apology video on YouTube:
So can musicians prevent usage of their songs in connection with political campaigns?
It depends on how the songs are used by the campaign.
If a song is used in a video advertisement without obtaining a synchronization license, the songwriter and/or music publisher can assert claims of copyright infringement against the offending campaign. If a song is used at a campaign rally, the viability of a copyright infringement claim is less clear. As explained in a previous post, most all musicians affiliate with one of the performing rights organizations – ASCAP, BMI, or SESAC – for the collection of royalties and enforcement of blanket licenses for the public performance of music in places such as bars, restaurants, nightclubs, and other public venues. Both the McCain and the Romney campaigns have claimed that their usage of artists' music at campaign rallies was lawful pursuant to the venue’s public performance blanket licenses.
However, the stronger claim for musicians to assert in objecting to the usage of their songs at campaign rallies is for false endorsement. Under the Lanham Act, if the campaign’s usage of a song implies a sponsorship or endorsement by the band, the campaign could be held liable for false endorsement.
Until the extent to which a political party’s usage of artists’ music is litigated and defined by the courts, it seems the best approach for the political parties would be to ask for artists’ permission to use their music. When artists object to the use of their music in connection with political campaigns, at a minimum, it results in unfavorable publicity for the candidate, but at worst, it could also potentially result in legal liability for false endorsement under the Lanham Act.