It's only rock 'n' roll but you can't use it

By Travis M. Andrews

The Rolling Stones don't want Donald Trump playing their songs. Travis M. Andrews looks at similar cases and what the law says.
The Rolling Stones say that the band had "never given permission to the Trump campaign to use their songs and have requested that they cease all use immediately. Photo / Michael Craig
The Rolling Stones say that the band had "never given permission to the Trump campaign to use their songs and have requested that they cease all use immediately. Photo / Michael Craig

As reality television star and real estate mogul Donald Trump took to the stage at Trump Tower on Wednesday to deliver his victory speech, a familiar tune filled the room: Start Me Up, that rough, thumping anthem by the Rolling Stones.

The song has a history of advertorial usage - it was the first Stones song used in a TV commercial when Microsoft co-opted it to sell its Windows 95 operating system, Business Insider reported - but the band might be more fond of Bill Gates than of Trump. On Thursday, they released a statement that read, "The Rolling Stones have never given permission to the Trump campaign to use their songs and have requested that they cease all use immediately," Entertainment Weekly reported.

It's far from the first time this sort of thing has happened. Numerous examples have appeared in this election season alone. Trump's candidacy kicked off with Canadian rocker Neil Young blasting the businessman-turned-politician for using Rockin' in the Free World during his candidacy announcement.

Adele and Aerosmith frontman Steven Tyler have both demanded Trump stop using their music.

And a glance at history reveals many more examples of musicians being upset at politicians using their material.

Perhaps the most notable one is Bruce Springsteen versus President Ronald Reagan. During his successful run for re-election in 1984, Reagan announced to a crowd in New Jersey, "America's future rests in a thousand dreams inside our hearts. It rests in the message of hope in the songs of a man so many young Americans admire: New Jersey's own Bruce Springsteen."

He was referencing Born in the USA, which he had requested to use in his campaign, only to be denied by Springsteen. The New Jersey rocker was so angry, the previously apolitical rock star began speaking out against Reagan.

"I think people have a need to feel good about the country they live in. But what's happening, I think, is that that need - which is a good thing - is getting manipulated and exploited," Springsteen told Rolling Stone, regarding the candidate's request.

Bruce Springsteen began speaking out against Ronald Reagan. Photo / AP
Bruce Springsteen began speaking out against Ronald Reagan. Photo / AP

In the age of social media, these quarrels have grown substantially more public. Take Boston punk band Dropkick Murphys' response to Wisconsin's Republican Governor Scott Walker playing their cover of Woodie Guthrie's I'm Shipping Up to Boston at the Iowa Freedom Summit.

John Cougar Mellencamp, Tom Petty and Sting all objected to then-Texas Governor George W. Bush using their songs in his 2000 presidential campaign (Sting also objected to Al Gore using a song). Arizona Senator John McCain had a particularly bad run in 2008, receiving complaints from Mellencamp, Van Halen, Heart, Bon Jovi, the Foo Fighters and ABBA before eventually being sued by Jackson Browne. During that same election, Sam Moore (of Sam & Dave) called out then-Illinois Senator Barack Obama for using Hold On, I'm Coming. Four years later, former Massachusetts Governor Mitt Romney found himself in the crosshairs for using songs by the Silversun Pickups, K'naan, Twisted Sister and Survivor.

Sidestepping the questionable choice of using songs protesting American policy and politicians - from their titles, Rockin' in the Free World and Born in the USA both seem to be bald-eagle-soaring, American flag-waving, fist-pumping anthems, but the first was an argument against the Vietnam War and the latter was a protest against George H.W. Bush - it's difficult not to wonder why politicians keep making the same mistakes.

Joe Trippi, who served as the campaign manager for former Vermont Governor Howard Dean's 2004 presidential bid, said most of the time a younger person involved with the campaign simply gets excited and picks a song, hoping to stir voters and supporters. Sometimes, of course, the candidate asks for it himself, but Trippi said generally the candidate has no idea what song has been chosen.

"Nine times out of 10, it's a young advance person who thinks it's a cool song to play when the guy's walking in and the candidate hasn't a clue what was playing," Trippi told Rolling Stone. "In this case, Donald Trump could have walked in that room: 'I want that Neil Young song, and it better be playing loud'. But I don't know."

For Republicans, finding rock music to go with a campaign can be difficult, though. Musicians have requested Democratic campaigns stop using a song a mere two times, according to website Fivethirtyeight.

It's untested in the political realm. Even if Donald Trump has the ASCAP right to use a Neil Young song, does Neil have the right to nevertheless go after him on right of publicity? I say he does.
Lawrence Iser

Regardless of why, experts urge political campaigns to stop using songs when an artist makes such a request, as it's bad for both parties.

"The optics of it are so bad that there's really not much point in continuing to use a piece of music when the musicians really don't want you to," copyright law expert Sherin Siy told NPR.

And it's not much better for the musicians.

"The artist gets drawn into the question of whether or not to take any action, and runs the risk of giving the politicians some additional publicity, or [allowing] the public for one second to think that someone like Neil Young was endorsing Donald Trump," Jon Landau, Bruce Springsteen's manager, told Rolling Stone. "It's kind of a reverse endorsement trap - Ronald Reagan declares Bruce as one of his own, and then Bruce has to either let it stand or actively disassociate. When the confusion gets big enough, most artists will, one way or the other, step in."

With that in mind, do bands have any true recourse to stop politicians, aside from making public statements and hoping to shame them into pulling the songs from their campaigns? As it turns out, the answer to that question is both yes and no.

First, it depends on how the songs are used. Most of the complaints listed above are for politicians using their songs at campaign rallies, which the Associated Press reports is legally OK so long as either the political organisation or the venue acquires a "blanket licence" for an artist's entire catalogue from ASCAP and BMI - both of these are non-profit performing rights organisations that license music and distribute royalties. That said, BMI allows artists to opt songs out of the blanket licence, which would disallow such public usage.

But if the song in question is going to be used in a commercial, it's important to acquire permission, because royalties for that specific usage will have to be paid to whoever owns the song recording, NPR reported. Yes, that includes YouTube.

Neil Young was upset that Donald Trump used his song Rockin' in the Free World. Photo / Dean Purcell
Neil Young was upset that Donald Trump used his song Rockin' in the Free World. Photo / Dean Purcell

Then, there's what the song's usage might denote. Musicians can (and have) sued politicians for false advertising claiming that the song makes it seem as if the musician has endorsed a particular candidate, the New York Times reported. The "right of publicity" also potentially allows an artist to protect his or her image in the public realm.

"It's untested in the political realm," copyright lawyer Lawrence Iser told Rolling Stone. "Even if Donald Trump has the ASCAP right to use a Neil Young song, does Neil have the right to nevertheless go after him on right of publicity? I say he does."

An explainer released by ASCAP states, "As a general rule, a campaign should be aware that, in most cases, the more closely a song is tied to the 'image' or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song's usage in the campaign."

It remains a legal gray area, but lawsuits against politicians have become more common since 2008.

That's when Jackson Browne sued McCain and the Republican National Committee for using Browne's 1977 hit Running on Empty in a web video, which criticised Obama for claiming Americans could save petrol by keeping their tyre pressure at the proper level. McCain and the RNC settled the case for an undisclosed amount and issued an apology in which they promised to secure rights in the future before using songs in their campaigns.

Then in 2010 Talking Heads frontman David Byrne sued then-Florida Governor Charlie Crist for using the band's 1985 single titled Road to Nowhere in a video advertisement for his senatorial campaign. Byrne sought US$1 million ($1.46 million). The song's title proved prescient, as Crist won neither the election nor the lawsuit. The case was settled out of court for an undisclosed amount, the Tampa Bay Times reported, and Crist even publicly apologised to Byrne as part of the settlement.

After that, it was open season. Survivor sued then former House Speaker Newt Gingrich in 2012 for using the Rocky III theme song Eye of the Tiger at several of his presidential campaign events, which he had been doing for years at earlier political gatherings. They settled out of court. Rapper K'naan threatened legal action against the Romney campaign in 2012, but the candidate stopped using his music. Don Henley won a lawsuit against Republican senatorial hopeful Chuck DeVore in 2010 for using the backing tracks for his songs Boys of Summer and All She Wants to Do Is Dance and adding satirical lyrics.

"Because nobody sued, the candidates always thought they could get away with it, and they still think that today," Iser, the copyright lawyer who represented Browne and Byrne, told the New York Times. "What did you get? You got some publicity. You got a takedown letter. Typically the campaigns would stop using the piece."

At this point, the Rolling Stones haven't mentioned a lawsuit. But, if Trump refuses to stop playing the band's songs, a precedent for one has certainly been set.

- Washington Post, Bloomberg

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