by John Seay, Atlanta Entertainment Lawyer: The Seay Firm LLC (@TheSeayFirmLLC)
Every so often, but at the very least once every presidential election cycle, a band makes national headlines by sending a politician a letter asking him or her to cease and desist from playing the band’s song at campaign events. The most recent band to partake in that illustrious—if prickly—tradition, is Silversun Pickups, who earlier this month asked the Romney campaign to stop playing the band’s song “Panic Switch” at campaign events.
The song, which is from the band’s 2009 album Swoon, doesn’t seem particularly political or anthemic. Nevertheless, the Romney campaign heard something in it that they liked and thought resonated with the campaign’s message. And so the song—to the apparent chagrin of Silversun Pickups—made its way onto the campaign’s pre-event playlist. In a somewhat sarcastic but pointed letter to the Romney campaign, Silversun Pickup’s attorney stated that the campaign’s use of the song violated copyright and trademark laws.
Romney is not the first politician to receive such a letter. Ronald Reagan received one from Bruce Springsteen when the former infamously—and apparently without actually listening to the lyrics beforehand—used “Born in the U.S.A.” during his 1984 presidential campaign. Similarly, Tom Petty’s “American Girl” was a short-lived favorite of Michelle Bachmann in 2011. Don Henley was offended when Chuck Devore used “Boys of Summer” and “All She Wants To Do Is Dance” in his 2010 Senate campaign. Although Republicans are often the targets of such letters, Democrats are not without their blemishes: in 2008, Barack Obama was asked by Sam Moore to stop using “Soul Man” and “Hold On, I’m Coming.”
In most cases, upon receiving angry letters from bands, political candidates simply stop using the song. After all, there are many other songs from which to choose. But however embarrassing it may be to get called out in the media, these political campaigns are probably not actually violating copyright law. True, songwriters own the exclusive right to perform their songs publicly, but they typically register their songs with performing rights societies like ASCAP, BMI and SESAC (PROs). Those PROs offer “blanket licenses” that are purchased by restaurants, radio shows, music venues and, yes, political campaigns. Those blanket licenses give the license holder the right to play any song in that PRO’s catalog without having to obtain any separate permission or license from the artist.
The Romney campaign almost certainly purchased blanket licenses from PROs that cover its use of the Silversun Pickups song in its pre-event playlists. So while the campaign, in response to the letter from the band, stated that the use of the song was inadvertent and that it would stop using it immediately, note that the campaign—assuming it had obtained the appropriate license—wasn’t technically required to comply. Sarah Palin, for example, flatly refused to stop playing “Barracuda” by Heart at her campaign events, despite repeated pleas from the band. Apparently, Palin believed that her use of the song was essential in her effort to reinforce her absolutely ridiculous nickname, “Sarah Barracuda.”
But Palin’s use of that song brings up another point. While copyright law doesn’t provide bands with much protection in this arena, trademark law might. There is a difference between playing a song while supporters file into a venue, and using that song as the campaign’s theme song (think Bill Clinton’s use of the Fleetwood Mac song, “Don’t Stop”). If a use of a song is so intertwined with a political candidate and that candidate’s campaign as to become synonymous with it, then an artist could claim—under the Lanham Act—that the excessive use of the song is creating a false association of sponsorship and therefore damaging the band’s brand and potentially curtailing other sponsorship opportunities. Whether Palin’s use of “Barracuda” would have met that threshold is unclear.
Should bands be allowed to stop political campaigns from using their songs? Probably so, especially when the song is played repeatedly or used as the campaign’s themesong. Many foreign countries already recognize the “moral rights” of an artist to veto, for example, any use of a song that damages the song’s integrity. But absent the adoption of those rights by the U.S. (don’t hold your breath), artists may simply have to remain persistent or make their claims under trademark law. But don’t feel too sorry for Silversun Pickups. Not only did they get paid through their PRO for the Romney Campaign’s use of their song, but thanks to all of the media attention this story has received, they may have sold a few more albums because of it. Just maybe not to anyone from the Romney campaign.