Unauthorized Uses of Music in Campaign Ads

Candidates for public office have long sought to align themselves with popular cultural icons ' often in the form of musicians and their music. In the last Presidential campaign, music in campaign ads made legal headlines when singer/songwriter Jackson Browne sued over the unauthorized inclusion of his song and recording of “Running on Empty” in an anti-Obama campaign ad for Republican Presidential candidate John McCain. Browne v. McCain, 08-05334 (S.D. Calif.). There aren't many court rulings on music in campaign ads, though before being settled in 2009, Browne's suit resulted in several.

Then in June 2010, the U.S. District Court for the Southern District of California issued an opinion in a suit musician Don Henley brought over the unauthorized use of two of his songs ' with new, unauthorized lyrics ' in campaign ads for Chuck DeVore's bid for the Republican nomination for the U.S. Senate. In August, Henley and DeVore announced they settled that suit. But the Browne and Henley litigations arose during a recent spate of such campaign ad controversies. The issues in these cases can also apply to music incorporated without consent into product ads in general and in other media uses, such as in movies, TV shows and video games.

Lawrence Y. Iser, a partner in Los Angeles's Kinsella, Weitzman, Iser, Kump & Aldisert LLP, served as attorney for Jackson Browne in the McCain litigation and is counsel to musician David Byrne in a pending action against Florida Governor Charlie Crist that was filed after Crist used the Talking Heads' song and recording “Road to Nowhere” in Crist's campaign ad for the U.S. Senate. Byrne v. Crist, 8:10-CV1187 (M.D. Fla.). In the Q&A that follows, Iser responds to questions from Entertainment Law & Finance (ELF) Editor-in-Chief Stan Soocher about litigation and related issues regarding music in political ads.

ELF: What is the background history of litigation by artists over politicians' unauthorized uses of artists' works in political campaigns?

Iser: The earliest case (that people talk about) of a politician misappropriating a song for use in a campaign was Ronald Reagan's use of Bruce Springsteen's “Born In The U.S.A” as a theme song for Reagan's 1984 campaign for President. After Springsteen sent a cease-and-desist demand letter, the campaign stopped using it. Although the use of the song blaring over loudspeakers at campaign rallies was most likely not an infringement (instead likely covered by a public performance license), the irony was that the song was Springsteen's indictment of the Vietnam War and as such was the antithesis of Reagan's politics.

Tom Petty threatened to sue George W. Bush in 2000 for his unauthorized use of “I Won't Back Down” at campaign appearances. Bush backed down and stopped using the song. And it is not just the Republicans. Barack Obama used Sam & Dave's “Hold On! I'm A-Comin” without permission at public appearances until he received a cease-and-desist from Sam Moore, who famously supported Republican Bob Dole's 1996 bid for President, at one point modifying “Soul Man” to “Dole Man.” And of course, Sarah Palin created quite a stir when she chose Heart's “Barracuda” for her musical theme, a song about the ruthless music industry. An interesting choice for Palin, who continued to use the song even after she received a cease-and-desist.

ELF: How are complaints drafted in these types of cases (i.e., framing the factual allegations, causes of action typically included)?

Iser: The unauthorized use of a sound recording in a campaign commercial gives rise to claims for copyright infringement (for the sound recording, the underlying musical composition, and if video footage is used, the video), false endorsement under the Lanham Act and, depending upon the jurisdiction, if the voice is a famous one, violation of the singer's right of publicity.

ELF: What types of pre-trial motions might be raised by defendants in these litigations and what arguments would plaintiffs make in their bid to defeat these motions?

Iser: Using the case of Browne v. McCain as a case study:

Copyright Infringement and Fair Use. Each of the defendants [which included the Republican National Committee and the Ohio Republican Party] moved to dismiss the complaint arguing that the fair use doctrine barred Browne's claim for copyright infringement. The defendants argued that because the nature of a political campaign is so-called “political speech,” it is a “fair use” as a matter of law for politicians and their campaigns to use copyrighted materials in the campaign without permission or license ' because the protections afforded by copyright must give way to the importance of a free flow of ideas.

The court rejected the defendants' fair use argument and denied the motions to dismiss the copyright claim, holding that “copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine.” Browne v. McCain[, 611 F.Supp.2d 1073 (S.D.Calif. 2009).] The evidence submitted by the defendants included a declaration from the communications director of the Ohio Republican Party, who declared that he picked the song “Running on Empty” for the commercial because it “seemed to be a perfect fit” with the campaign video attacking Senator Obama's suggestion that drivers should properly inflate their tires. He further admitted that he was not previously familiar with Browne or with the song. In light of this evidence, the defendants could not contend that they were using the song for a legitimate fair use criticism of, or comment on, the song itself. Thus, the use of “Running on Empty” was seen for what it was, a good song for a campaign commercial touting Senator McCain's campaign and attacking Barack Obama, and not as a comment on the song or on Browne or his political views.

False Endorsement under the Lanham Act. The defendants also contended that Browne's claim for false endorsement should be dismissed because the U.S. trademark statute, the Lanham Act, does not apply to “political speech.” The court rejected this argument as well, noting that the Lanham Act does apply to political speech and that the Lanham Act's purpose of reducing consumer confusion is particularly important in political campaigns.

The court also rejected the defendants' motion that the case should be dismissed because the video was an expressive work barring Jackson's claim under the First Amendment. The court held that the defendants had not established that the campaign video was an artistic work, and noted that the First Amendment does not bar claims for false endorsement merely because the speech is involved is political speech.

Right of Publicity. The defendants filed a special “motion to strike” Browne's claim for violation of his right of publicity under California law, arguing that the claim impinged on the defendants' constitutional right of free speech. Some news stories got it wrong and erroneously reported that Senator McCain had “sued back.” That wasn't true, although the defendants may have been entitled to an award of attorney fees had the motion been granted.

Once again, the court ruled against the defendants, finding that Browne had properly met his burden of showing that his voice is “sufficiently distinctive and widely known that, in light of the Composition's success, its use in the Commercial could constitute use of his identity.” The court then found that the defendants had failed to demonstrate that the use of “Running on Empty” in the commercial was protected “as a matter of public interest.” The court explained that “there is no evidence that Defendants chose ["Running on Empty"] because [the song] or Browne were 'matters of public interest,'” noting that the evidence submitted by the defendants had established that the principals of the Ohio Republican Party did not even know that Browne was politically active. The court further found that the defendants had failed to establish that their use of “Running on Empty” in their commercial was “transformative,” which means that the celebrity's likeness was transformed in a manner that it becomes the defendants' own expression. Here, the court noted that the defendants' used Jackson's voice verbatim, with no changes or alterations to his voice. Browne v. McCain[, 611 F.Supp.2d 1062 (C.D.Calif. 2009).]

ELF: How was the settlement between Jackson Browne and the defendants negotiated?

Iser: The settlement discussions were confidential, as is the financial aspect of the settlement, so I cannot comment on the discussions.

ELF: In discovery, what are some of the interrogatory questions and document requests a plaintiff would want to send to the defendants and the defendants to the plaintiffs?

Iser: A plaintiff would be interested in discovering the circumstances surrounding the creation of the campaign commercial, the political strategy behind the commercial, any efforts made to obtain a license or permission for use of the music, and any policies and procedures established by the campaign or the political party for the use of copyrighted materials by the campaign. The plaintiff would also be interested in obtaining evidence of the scope of the broadcast of the commercial. Defendants would be interested in knowing the plaintiff's prior history with respect to licensing his or her songs for audiovisual works in order to assess plaintiff's potential damages.

ELF: Who would artist's counsel want to depose on the defense side (e.g., political party officials, advertising company, etc.), and what territory would the deposition questions cover?

Iser: Artist's counsel would depose the candidate, the manager of the campaign, the persons responsible for creating the commercial, and the persons responsible for broadcasting the commercial. Topics for the deposition would include: policies, procedures and approvals within the campaign and/or the political party with respect to the use of intellectual property by the campaign; the decision to create the commercial in question; the strategy behind the commercial; how the commercial was created; efforts made to obtain a license or permission for the use of the music and other protected materials; the distribution or broadcast of the commercial; and any feedback received by the campaign or the party with respect to the commercial.

ELF: Compare and/or contrast Jackson Browne's suit against John McCain over the 2008 Presidential campaign with/to David Byrne's current suit against Florida Governor Charlie Crist and the ruling in Don Henley's suit against California senatorial candidate Chuck Devore, as well as the campaign-song dispute musician Joe Walsh had this year with Illinois politician Joe Walsh.

Iser: The Browne and Byrne cases are similar. Both involve the unauthorized use of a famous song in an audiovisual work (the campaign commercial). In both cases, the original artists' recordings were used without any modification. Henley's suit had different facts but was an important reaffirmation of the rules regarding parody. California Senate candidate DeVore modified the lyrics of Henley's “Boys of Summer” into “Hope of November” to make fun of Barack Obama. DeVore modified another Henley song, “All She Wants to Do Is Dance,” to make fun of his Senate opponent, Barbara Boxer (“All She Wants to Do Is Tax”). The court correctly found for Henley, finding that although DeVore had modified the lyrics, DeVore had not created a parody of the song itself, but had simply misappropriated the songs to make fun of his political opponents. [Henley v. DeVore, 09-4181 (C.D. Calif. 2010).]

Similarly, Republican candidate for Congress from Illinois Joe Walsh claimed that because he shared the same name with musician Walsh, he was entitled to use and modify the latter's “Walk Away” into a campaign theme song. Politician Walsh claimed his modification constituted protected parody. However, his modification of the song did not parody the original; rather, the modified song was used for purely political purposes unrelated to the original or to musician Walsh. Walsh the politician smartly decided to take the video featuring the song off his Web site. The precedent is clear that to constitute a parody, the accused work must comment in some way on the original song. See, Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994).

Candidates for public office have long sought to align themselves with popular cultural icons ' often in the form of musicians and their music. In the last Presidential campaign, music in campaign ads made legal headlines when singer/songwriter Jackson Browne sued over the unauthorized inclusion of his song and recording of “Running on Empty” in an anti-Obama campaign ad for Republican Presidential candidate John McCain. Browne v. McCain, 08-05334 (S.D. Calif.). There aren't many court rulings on music in campaign ads, though before being settled in 2009, Browne's suit resulted in several.

Then in June 2010, the U.S. District Court for the Southern District of California issued an opinion in a suit musician Don Henley brought over the unauthorized use of two of his songs ' with new, unauthorized lyrics ' in campaign ads for Chuck DeVore's bid for the Republican nomination for the U.S. Senate. In August, Henley and DeVore announced they settled that suit. But the Browne and Henley litigations arose during a recent spate of such campaign ad controversies. The issues in these cases can also apply to music incorporated without consent into product ads in general and in other media uses, such as in movies, TV shows and video games.

Lawrence Y. Iser, a partner in Los Angeles's Kinsella, Weitzman, Iser, Kump & Aldisert LLP, served as attorney for Jackson Browne in the McCain litigation and is counsel to musician David Byrne in a pending action against Florida Governor Charlie Crist that was filed after Crist used the Talking Heads' song and recording “Road to Nowhere” in Crist's campaign ad for the U.S. Senate. Byrne v. Crist, 8:10-CV1187 (M.D. Fla.). In the Q&A that follows, Iser responds to questions from Entertainment Law & Finance (ELF) Editor-in-Chief Stan Soocher about litigation and related issues regarding music in political ads.

ELF: What is the background history of litigation by artists over politicians' unauthorized uses of artists' works in political campaigns?

Iser: The earliest case (that people talk about) of a politician misappropriating a song for use in a campaign was Ronald Reagan's use of Bruce Springsteen's “Born In The U.S.A” as a theme song for Reagan's 1984 campaign for President. After Springsteen sent a cease-and-desist demand letter, the campaign stopped using it. Although the use of the song blaring over loudspeakers at campaign rallies was most likely not an infringement (instead likely covered by a public performance license), the irony was that the song was Springsteen's indictment of the Vietnam War and as such was the antithesis of Reagan's politics.

Tom Petty threatened to sue George W. Bush in 2000 for his unauthorized use of “I Won't Back Down” at campaign appearances. Bush backed down and stopped using the song. And it is not just the Republicans. Barack Obama used Sam & Dave's “Hold On! I'm A-Comin” without permission at public appearances until he received a cease-and-desist from Sam Moore, who famously supported Republican Bob Dole's 1996 bid for President, at one point modifying “Soul Man” to “Dole Man.” And of course, Sarah Palin created quite a stir when she chose Heart's “Barracuda” for her musical theme, a song about the ruthless music industry. An interesting choice for Palin, who continued to use the song even after she received a cease-and-desist.

ELF: How are complaints drafted in these types of cases (i.e., framing the factual allegations, causes of action typically included)?

Iser: The unauthorized use of a sound recording in a campaign commercial gives rise to claims for copyright infringement (for the sound recording, the underlying musical composition, and if video footage is used, the video), false endorsement under the Lanham Act and, depending upon the jurisdiction, if the voice is a famous one, violation of the singer's right of publicity.

ELF: What types of pre-trial motions might be raised by defendants in these litigations and what arguments would plaintiffs make in their bid to defeat these motions?

Iser: Using the case of Browne v. McCain as a case study:

Copyright Infringement and Fair Use. Each of the defendants [which included the Republican National Committee and the Ohio Republican Party] moved to dismiss the complaint arguing that the fair use doctrine barred Browne's claim for copyright infringement. The defendants argued that because the nature of a political campaign is so-called “political speech,” it is a “fair use” as a matter of law for politicians and their campaigns to use copyrighted materials in the campaign without permission or license ' because the protections afforded by copyright must give way to the importance of a free flow of ideas.

The court rejected the defendants' fair use argument and denied the motions to dismiss the copyright claim, holding that “copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine.” Browne v. McCain[, 611 F.Supp.2d 1073 (S.D.Calif. 2009).] The evidence submitted by the defendants included a declaration from the communications director of the Ohio Republican Party, who declared that he picked the song “Running on Empty” for the commercial because it “seemed to be a perfect fit” with the campaign video attacking Senator Obama's suggestion that drivers should properly inflate their tires. He further admitted that he was not previously familiar with Browne or with the song. In light of this evidence, the defendants could not contend that they were using the song for a legitimate fair use criticism of, or comment on, the song itself. Thus, the use of “Running on Empty” was seen for what it was, a good song for a campaign commercial touting Senator McCain's campaign and attacking Barack Obama, and not as a comment on the song or on Browne or his political views.

False Endorsement under the Lanham Act. The defendants also contended that Browne's claim for false endorsement should be dismissed because the U.S. trademark statute, the Lanham Act, does not apply to “political speech.” The court rejected this argument as well, noting that the Lanham Act does apply to political speech and that the Lanham Act's purpose of reducing consumer confusion is particularly important in political campaigns.

The court also rejected the defendants' motion that the case should be dismissed because the video was an expressive work barring Jackson's claim under the First Amendment. The court held that the defendants had not established that the campaign video was an artistic work, and noted that the First Amendment does not bar claims for false endorsement merely because the speech is involved is political speech.

Right of Publicity. The defendants filed a special “motion to strike” Browne's claim for violation of his right of publicity under California law, arguing that the claim impinged on the defendants' constitutional right of free speech. Some news stories got it wrong and erroneously reported that Senator McCain had “sued back.” That wasn't true, although the defendants may have been entitled to an award of attorney fees had the motion been granted.

Once again, the court ruled against the defendants, finding that Browne had properly met his burden of showing that his voice is “sufficiently distinctive and widely known that, in light of the Composition's success, its use in the Commercial could constitute use of his identity.” The court then found that the defendants had failed to demonstrate that the use of “Running on Empty” in the commercial was protected “as a matter of public interest.” The court explained that “there is no evidence that Defendants chose ["Running on Empty"] because [the song] or Browne were 'matters of public interest,'” noting that the evidence submitted by the defendants had established that the principals of the Ohio Republican Party did not even know that Browne was politically active. The court further found that the defendants had failed to establish that their use of “Running on Empty” in their commercial was “transformative,” which means that the celebrity's likeness was transformed in a manner that it becomes the defendants' own expression. Here, the court noted that the defendants' used Jackson's voice verbatim, with no changes or alterations to his voice. Browne v. McCain[, 611 F.Supp.2d 1062 (C.D.Calif. 2009).]

ELF: How was the settlement between Jackson Browne and the defendants negotiated?

Iser: The settlement discussions were confidential, as is the financial aspect of the settlement, so I cannot comment on the discussions.

ELF: In discovery, what are some of the interrogatory questions and document requests a plaintiff would want to send to the defendants and the defendants to the plaintiffs?

Iser: A plaintiff would be interested in discovering the circumstances surrounding the creation of the campaign commercial, the political strategy behind the commercial, any efforts made to obtain a license or permission for use of the music, and any policies and procedures established by the campaign or the political party for the use of copyrighted materials by the campaign. The plaintiff would also be interested in obtaining evidence of the scope of the broadcast of the commercial. Defendants would be interested in knowing the plaintiff's prior history with respect to licensing his or her songs for audiovisual works in order to assess plaintiff's potential damages.

ELF: Who would artist's counsel want to depose on the defense side (e.g., political party officials, advertising company, etc.), and what territory would the deposition questions cover?

Iser: Artist's counsel would depose the candidate, the manager of the campaign, the persons responsible for creating the commercial, and the persons responsible for broadcasting the commercial. Topics for the deposition would include: policies, procedures and approvals within the campaign and/or the political party with respect to the use of intellectual property by the campaign; the decision to create the commercial in question; the strategy behind the commercial; how the commercial was created; efforts made to obtain a license or permission for the use of the music and other protected materials; the distribution or broadcast of the commercial; and any feedback received by the campaign or the party with respect to the commercial.

ELF: Compare and/or contrast Jackson Browne's suit against John McCain over the 2008 Presidential campaign with/to David Byrne's current suit against Florida Governor Charlie Crist and the ruling in Don Henley's suit against California senatorial candidate Chuck Devore, as well as the campaign-song dispute musician Joe Walsh had this year with Illinois politician Joe Walsh.

Iser: The Browne and Byrne cases are similar. Both involve the unauthorized use of a famous song in an audiovisual work (the campaign commercial). In both cases, the original artists' recordings were used without any modification. Henley's suit had different facts but was an important reaffirmation of the rules regarding parody. California Senate candidate DeVore modified the lyrics of Henley's “Boys of Summer” into “Hope of November” to make fun of Barack Obama. DeVore modified another Henley song, “All She Wants to Do Is Dance,” to make fun of his Senate opponent, Barbara Boxer (“All She Wants to Do Is Tax”). The court correctly found for Henley, finding that although DeVore had modified the lyrics, DeVore had not created a parody of the song itself, but had simply misappropriated the songs to make fun of his political opponents. [Henley v. DeVore, 09-4181 (C.D. Calif. 2010).]

Similarly, Republican candidate for Congress from Illinois Joe Walsh claimed that because he shared the same name with musician Walsh, he was entitled to use and modify the latter's “Walk Away” into a campaign theme song. Politician Walsh claimed his modification constituted protected parody. However, his modification of the song did not parody the original; rather, the modified song was used for purely political purposes unrelated to the original or to musician Walsh. Walsh the politician smartly decided to take the video featuring the song off his Web site. The precedent is clear that to constitute a parody, the accused work must comment in some way on the original song. See , Campbell v. Acuff-Rose Music Inc. , 510 U.S. 569 (1994).