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Campaign Music – “I Told You So” Edition

More from Berke Farah LLP Senior Consultant Matthew Swanlund on the laws governing use of music in campaigns:

Campaign Music – “I Told You So” Edition

DATEJuly 6, 2016

POSTED BYMatthew Swanlund


When will these politicians stop making such ridiculous mistakes with their campaign music? Almost exactly a year ago I wrote about Donald Trump’s objectionable use of music in his presidential run, which unsurprisingly has continued since my original article. However, a new political figure has now entered the ring to challenge the king of objectionable campaign music use.

Former Republican presidential hopeful Mike Huckabee was just ordered to pay $25,000 to a company owned by Survivor guitarist Frankie Sullivan to settle a lawsuit stemming from Huckabee’s unauthorized use of the band’s “Eye of the Tiger” at a rally in support of Kim Davis. This is an unusual development because in the past politicians have usually escaped with an embarrassed mea culpa for objectionable campaign music use, but that was when their campaigns took the time to at least secure the appropriate licensing. Even Donald Trump survived with just a slight public scolding from Neil Young.

The Huckabee case was filed by Rude Music, which is owned by Survivor founding member Frank Sullivan, who co-authored the song. His attorneys argued that Huckabee himself is a musician and is familiar with copyright laws, which makes his ignorance even more baffling. This is not Huckabee’s first rodeo, though. In the legal filings, Sullivan’s attorneys noted that in 2008, the founder of the band Boston demanded that Huckabee’s campaign stop playing “More Than a Feeling” at campaign events.

A number of campaigns have been hit with legal claims for the unauthorized use of campaign music at events and rallies. John McCain’s campaign, the Republican National Committee and the Ohio Republican Party in 2009 settled a lawsuit filed by Jackson Browne over the use of “Running on Empty” in a campaign advertisement. The settlement was reportedly for a six-figure sum.

More recently, a number of artists have requested that Donald Trump’s campaign stop playing their music at rallies, although Trump’s campaign has insisted that their use has been legal because they have licensed the works from performing rights agencies. Most campaigns would be embarrassed by the artist’s objections, but that hasn’t stopped Trump.

Sullivan has been historically aggressive in protecting his songs. In 2012, he also sued Newt Gingrich over the GOP candidate’s use of the Rocky III theme on the campaign trail; they eventually settled out of court. Mitt Romney, who also briefly used the track at 2012 rallies, escaped with just a cease-and-desist letter.

Huckabee initially came under fire for using the track at a September 2015 rally without permission. However, this rally was high-profile in nature – Huckabee was celebrating the release of Kentucky county clerk Davis, who was imprisoned after refusing a court order to give marriage licenses to same-sex couples. We all remember Huckabee raising Davis’ arm in the air as if he was celebrating Nelson Mandela’s release from prison. That was the first critical mistake Huckabee made – using the song in such a politically divisive setting, which ensured that it would be publicized widely.

In a recent Rolling Stone article, Sullivan said, “I do not like mixing rock and roll with politics; they do not go hand in hand. What upset me most [about Huckabee’s use] was that, once again, my song was being used to further a political agenda – and no one even bothered to ask for permission.” That was the second critical mistake Huckabee made – not only did he fail to secure the appropriate licensing, he didn’t ask the artist permission to use the song.

At a minimum, Huckabee would need a public performance license to play the song at the rally. Such a license can be obtained from ASCAP, BMI or SESAC, which are music performing rights organizations that license the public performances of its members’ musical works. A public performance is defined as one that occurs in a public place where people gather (other than a small circle of a family or social acquaintances). A public performance is also one that is transmitted to the public, for example, radio or TV broadcasts, and via the Internet. A campaign rally or event would qualify as a public performance place.

While many venues have proper “public performance” licenses in place, as a general rule the licenses granted for convention centers, arenas and hotels specifically exclude music used during conventions, expositions and campaign events. This Huckabee rally took place in front of a public courthouse, so there was no public performance license in place for the venue. Securing a public performance license would have guaranteed that the Huckabee campaign would have at least been in compliance with copyright law, which they failed to do.

“The ‘Eye of the Tiger’ copyright is a very valuable asset, and we work very hard to protect it,” Sullivan’s attorney told CNN. In court, Huckabee’s attorney argued that “non-commercial, fair use” laws protected this specific use of “Eye of the Tiger.” However, Sullivan’s team countered that Huckabee had claimed the rally as a “presidential campaign expense.” Ah, that might have been the fatal mistake by Huckabee – claiming publicly that it was non-commercial fair use, but then privately claiming the rally as a presidential campaign expense. Whoops.

In the same Rolling Stone article, Sullivan said, “I do not agree with Kim Davis’ stance and do not believe in denying gay rights and the freedom for all individuals to choose the lifestyle they want to live. Our Constitution, and the words of our Founding Fathers, stand tall for freedom, which is what America is all about. I find it ridiculous in this day and age that this fight against gay marriage has gone on, even after the Supreme Court’s ruling. Let’s stop!”

Not only can it be detrimental and embarrassing to have an artist object to a candidate’s use of campaign music (for anyone other than Trump, evidently), it can also be financially risky. The Huckabee campaign wrote a check for $25,000 to Sullivan to settle this claim, but the damages could have been higher. For example, statutory damages for intentional copyright infringement can be as high as $150,000, plus recovery of the plaintiff’s attorney’s fees.

If a political campaign wants to eliminate campaign music mistakes, particularly if the campaign wants to use a song as its theme, they should contact the management of the artists and the songwriters and obtain their permission to use the song. Obviously, this is the best way to ensure that the artist supports the use of the campaign music. Second, a public performance license will ensure that public performance of the song at campaign events is in compliance with copyright law. Third, a synchronization license should be obtained for use of the song in commercials, multimedia presentations, websites and any other uses in conjunction with video. Finally, the publisher of the song and the record label that controls the master recording may require a separate license.