The McCain-Palin campaign is having a hard time getting its groove on.
For politicians, every public event features a soundtrack of popular music, selected by the campaign staff as anthemic of the message du jour. Bill Clinton used Fleetwood Mac’s Don’t Stop Thinking About Tomorrow until we all ripped the Stevie Nicks posters from our bedroom walls in violent fits of overload. Hillary Clinton held an internet-based, you-select-my-theme-song contest which, after more than 200,000 electronic votes, somehow chose Canadian schlock diva Celine Dion’s You and I. PUMA must stand for Positively Unlistenable Musical Aesthetics.
But seemingly each time McCain and Palin put the needle to vinyl, they receive a cease-and-desist demand from the recording artists.
Things got ugly, recently, when Senator McCain decided to pander to voters during the vacation driving season by suggesting that offshore drilling is the solution to the nation’s dependence on foreign oil and to ridicule Barack Obama’s suggestion that energy conservation represented a sustainable approach to energy independence. The television spot produced in support of this gambit featured Jackson Browne’s Running on Empty, which pissed-off Mr. Browne, a lifelong democrat, well-know environmental activist, and apparent non-moron when it comes to energy policy. According to news reports, Mr. Browne sued Senator McCain and his campaign for copyright, trademark, and right of publicity infringements. It was a slight bummer — not to mention legal setback, until the pleadings were amended — that the offending ad was produced the Ohio Republican Party and the Republican National Comittee, rather than by the McCain campaign directly.
Since then, Van Halen have complained about the use of Right Now at the Republican National Convention, Heart have sought to enjoin Sarah (Barracuda) Palin from making grand entrances to its rocker, Barracuda, and Orleans (fronted by democratic congressman John Hall) have forbidden Senator McCain’s further use of Still the One.
When the McCain camp tried to go hip by uploading a campaign video to the web for viral distribution the piece was removed by YouTube after Warner Music Group flagged the unauthorized use of Can’t Take My Eyes Off of You by Frankie Valli and the Four Seasons.
John Mellencamp forced Senator McCain to stop using Our Country and Pink Houses at his rallies, and even ABBA told him to lay off Take a Chance on Me.
At some point, you’d think they’d ask permission — or at least take out a mechanical license from the distribution clearing houses ASCAP and BMI. It’s not just a good idea, it’s the law.
It must be mortifying for a political campaign to face repeated, public rebukes from icons of popular culture. And you would think that a law-maker who aspired to be POTUS would show at least cursory respect for the legal rights of others. No dice on both counts.
Whether Senator McCain’s unauthorized uses of popular music represents a violation of federal copyright law is, perhaps, an open question. The Copyright Act, 17 U.S.C § 106, et seq., gives the author of a copyrighted work, among other privileges, the exclusive right to transmit or broadcast the work. Others who wish to use the work must obtain prior permission. There are exceptions to these strictures, however, under the principle known as “fair use.” The issue for the court, to oversimplify only slightly, will be whether use of the music as non-commercial, political speech outweighs the commercial aspects of the misappropriation. Is there really any difference between selling cars or toothpaste and selling a candidate? Is the non-permitted use of copyrighted music at a campaign event any more legitimate than the use of, say, balloons and confetti stolen from a party supply vendor?
At least one lower court case leans Senator McCain’s way. In a political ad, a candidate used fifteen seconds of his opponent’s campaign jingle. The court ruled it was fair use because only a small fraction of the song was used and the purpose of using it was to further political debate. Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978). The song in that case, however, was an unambiguous signifier of the political opponent and was used as a direct identification of the opponent’s campaign. It was not employed to help develop collateral ideas promoted by the candidate, as in Mr. Browne’s case against the Republicans. This was likely a major factor in the fair use determination.
The trademark issues seem even less likely to go McCain’s way, and are far more interesting. American trademark jurisprudence is designed to protect consumers from being mislead about the origins of goods and services. The same probably holds true for politicians, though it hardly requires weapons-grade cynicism to cast aspersion either on their good, or their services. The Lanham Trademark Act, 42 U.S.C. § 43(a), forbids false implied endorsement in the following terms:
Any person who, in connection with any goods or services… uses in commerce any word, term, name, symbol, or device…or any false or misleading description …or representation of fact, which is likely to cause confusion … or to deceive as to the affiliation, connection, or association of such person with another person, or as to the… sponsorship, or approval of his/her goods, services, or commercial activities by another person, shall be liable in a civil action by any person who believes that he/she is or is likely to be damaged by such act.
This — along with breech of the performer’s “right of publicity” (that is: to the right to own and exploit one’s own fame) — is the crux of Mr. Browne’s case; and he is fairly well supported by precedent. In 1992, gravel-throated singer/songwriter Tom Waits brought a false-endorsement claim against snack-food giant Frito-Lay, arguing that a copycat singer, imitating his unique vocal stylings, gave a misleading perception that he endorsed its products. Waits v. Frito Lay, 978 F. 2d 1093 (9th Cir. 1992). The Ninth Circuit Court of Appeal held that, despite the inauthenticity of the voice used in the commercials, the confusingly Waits-like characteristics implied his celebrity endorsement. The Jackson Browne music, used in its original recording, present an even simpler case.
The music taken by the McCain campaign – as in campaigns before – was selected not only for its catchy and semi-relevant lyrics or bouncy tune, but because it is popular and recognizable. Everyone knows whose songs they are. In a time when politicians make periodic hajj to Hollywood in search of celebrity endorsements, it is impossible to believe that none would think that use of the song was the result of an endorsement of the candidate by the artist.
It is stunning to think that the McCain–Palin campaign would continue to stoop to music piracy, particularly after the repeated embarrassments. Then again, this is the same campaign that comes up with each new theme and slogan by simply stealing them from its adversary. Senator Obama seems to trust the voting public to be able to discern the dishonesty of Senator McCain’s mimicry. The recording artists are putting their faith in the courts.