Election Copyright – They’re Playing Our Song

Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
April 14, 2009

[This is the first in a series about copyright in the 2008 presidential campaign.]

Among all its other historic precedents, the 2008 presidential election provided an inordinate number of copyright disputes involving the candidates.  To opponents of intellectual property, that will just be further proof that copyright is out of control, permeating our lives in ways that restrict both technological progress and freedom of expression.

Putting that rhetoric aside, what I find fascinating about the copyright disputes of the 2008 election cycle is how much they exemplify varied strengths and weaknesses of American copyright, how often copyright law is used to vindicate non-economic interests, and how often it is misunderstood and misapplied, even by lawyers.

Let’s explore the copyright fights of the 56th general election for the leader of the American Republic.  We start in this first essay with the most familiar sort of electoral copyright dispute – the use of music.

“I Like Ike”

Since the first American presidential election, candidates have had “campaign songs.”  Initially these were written especially for the candidate or were new lyrics set to familiar, popular tunes.  William Henry Harrison’s campaign had a campaign song that went to the tune of “Yankee Doodle” and one set to a popular Irish tune of the period.  JFK’s campaign reworked the lyrics of Frank Sinatra’s “High Hopes” with memorable words including a spell-down of K-E-N-N-E-D-Y reminiscent of the Mickey Mouse Club.

It wasn’t until decades into the era of recorded music that it became clear that using a hit song with its original lyrics was as or more effective – especially if the song was identified with optimism, patriotism, or a determined spirit.  Bill Clinton’s 1992 campaign may have been most successful at this, linking the campaign thematically with Fleetwood Mac’s “Don’t Stop Thinking About Tomorrow,” a linkage the band members were happy to support – even to the point of reuniting to perform at Clinton’s first inaugural.

But lots of musicians have been less thrilled with being “linked” to – or used by – candidates they do not support.  This sort of public row over the use of recorded songs at campaign rallies goes at least as far back as the 1980s, when Bruce Springsteen objected to Ronald Reagan’s use on the campaign trial of “Born in the USA.”

During the 2008 election season, several musicians objected to the use of their songs by presidential campaigns.  Van Halen, the Foo Fighters, ABBA, John Mellencamp, and the members of Heart all took umbrage with use of their sound recordings on the campaign trail by John McCain; there were reports that soul artist Sam Moore asked Obama’s campaign to stop using his song “Soul Man.  Jackson Browne filed suit against the Ohio Republican Party and the McCain campaign for using Browne’s “Running on Empty” without authorization, a case that is continuing in Los Angeles.

Copyright Is a Winding Road

So what rights do musicians have?  What most of us call a “song” is really two copyrighted works.  Literally first is the copyrightable musical composition – the sheet music, words and notation.  When someone performs from the sheet music and the performance is recorded, you have a copyrightable sound recording.  So when Prince performs “Everyday Is a Winding Road” in concert, he is publicly performing a musical composition by Sheryl Crow, Jeff Trott, and Brian MacLeod; when we play Prince’s version of “Everyday Is a Winding Road” at a political rally, we are publicly performing both the Crow/Trott/MacLeod musical composition and Prince’s sound recording.

When it comes to political rallies, musicians can complain loudly and say that “permission was not granted,” but we are not talking about a violation of copyright law – at least not in the United States.  Under American law, copyright law gives musical compositions a general right of public performance, but it gives sound recordings only a much narrower public performance right limited to “digital audio transmissions.”  (There is a proposal in Congress to change this and create a general right of public performance in sound recordings – as exists in most European countries and Australia – but no one is betting what’s left of their 401K on that bill’s passage.)

So, every time “Barracuda” was performed at a public rally for Sarah Palin, the members of Heart were entitled to royalties as composer/songwriters (all members of the band were listed as co-writers).  They are paid these royalties through blanket licenses issued to venues (concert halls, stadiums, etc.) by societies that represent the composer/songwriters: ASCAP, BMI, and SESAC.  But as musical performers they have no claim for the sound recording blaring out of the rally loudspeakers.

The situation becomes different when politicians are using these songs in campaign advertisements.  Again, permission is needed for the musical composition, but a blanket license system is not used; the campaign needs to get permission for the specific use.  Nowadays, the ad is usually made available on the Internet.  When that happens, the sound recording is also being used in a “digital audio transmission,” involving that narrow right for sound recordings.  The reason why Heart and Foo Fighters only complained while Jackson Browne actually sued is because Browne’s song was used in a television commercial against Obama.

When Browne brought his lawsuit claiming infringement of the musical composition “Running on Empty,” the Republicans argued they were free to use Browne’s song on grounds of fair use and First-Amendment-protected political speech.  On Feb. 20, 2009, a federal district court judge in California denied the Republican Party’s motion to dismiss the lawsuit.  If Judge Klausner had ruled in favor of the Republicans, it would have signaled that all politicians could use whatever songs they want in TV, radio, and Internet ads on First Amendment and fair use grounds.

Sarah “Barracuda” Palin

So, that’s where we are.  Campaigns can use just about any recorded music they want at rallies and conventions – because of the easy, well-understood blanket licensing system for musical compositions and the lack of a general public performance right for sound recordings.  So far Browne v. McCain confirms that political campaigns cannot use sound recordings without permission in their advertisements and commercials.

Is that the right balance or a situation that makes no sense?

My impression is that few people sympathize with national political candidates who want to use songs – sound recordings – without permission and without paying.  These campaigns are operations in the tens or hundreds of millions of dollars.  It seems absurd that they should not pay for music to entertain people.  On the other hand, these campaigns are about political speech – the thing that is supposed to be our absolute core concern when it comes to free expression.  The freedom to use music for political speech is more important than the freedom to remix music for a rave or a MySpace page, isn’t it?

It’s also critically important to recognize that the musicians’ objections here are about non-economic interests.  For the artists, this isn’t about money, it is about meaning.  It is about “integrity” and what are called “moral rights” in international copyright.  These musicians do not want their work to become associated with the values of particular politicians.

For the Foo Fighters, their song “My Hero” was meant as “a celebration of the common man and his extraordinary potential” and the McCain campaign’s usage “pervert[ed] the original sentiment.”  Heart’s “Barracuda” was written as a “rant against the soulless, corporate nature of the music business, particularly for women.”  In the hands of Palin’s handlers, it was being “recoded” or “recontextualized” as emblematic of a feisty, unabashedly uninformed social conservatism.

Are these musicians being thin-skinned or do they have a valid concern as authors?  If Heart’s “Barracuda” had been used at all of Sarah Palin’s campaign stops and Palin had been elected our vice president, there might have been that abiding association of the song and the politician (and her values).  And, although this is political speech, was the song “Barracuda” really needed by Sarah Palin to get her positions across?  I just don’t know.

A lot of the online sentiment seems to sympathize with the musicians and against the politicians.  Perhaps we hold politicians in such low esteem that they make rock stars seem like embodiments of artistic integrity.  But if that’s your inclination, you have to reconcile that with whatever views you have on mash-ups, remixing, and derivative works – because while the politicians are not “transforming” the songs, they are imbuing them with new meaning.

It is hard to argue that lefty artists and rappers should be free to transform and recontextualize but conservative political voices cannot.  Because the interests at stake are so clearly non-economic, it is not so easy to draw the right line between allowing the artist to preserve the integrity of her work and allowing the rest of us to use it.

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