This article originally appeared in the 9.17.15 issue of Metroland
As the clown car of evil, stupid, absurd, and pandering
Republican candidates struggles to be taken seriously, the all-to-familiar
spectacle of these right-wing assholes trying to co-opt rock and roll is back
on center stage.
Why is it that
Republicans believe they can appear “with it” and “hep” by using the works of
artists that despise them?
review a couple recent examples.
busting Koch stooge wanker Scott Walker used his favorite Dropkick Murphys song
at campaign stops; the band got on Twitter and said “Please
stop using our music in any way...we literally hate you!!! Love, Dropkick
Murphys.” The band compared Walker to a
"white supremacist coming out to gangsta rap." The Donald used Neil Young’s “Rockin’ In The
Free World”, and Neil issued a statement that he was a Bernie Sanders supporter
and didn’t want his music used in any political campaigns. Trump’s campaign said that because it had an
ASCAP license that the use was OK, then Trump tweeted that Young was a “total
hypocrite” because Young had asked him recently to invest in Young’s ill-fated
Pono music venture. Why this is hypocritical is anybody’s guess, but then Trump
announced he’d stop using the song, tweeting
@Neilyoung’s song, “Rockin’ In The Free World” was just one of 10
songs used as background music. Didn’t love it anyway.” Ha!
Mike Huckabee muscled Ted Cruz off the podium to stand in
solidarity with Kentucky Jeebus nutjob county clerk and serial adulterer Kim
Davis after she got sprung from the hoosegow, all to the tune of Survivor’s
“Eye Of The Tiger”. The Survivor guys
went ballistic, and it was reported that the band was suing Davis and Huckabee
for $1.2 million dollars. That report
was apparently a hoax, but meantime Huckabee, despicable little worm that he
is, is running around saying the song wasn’t his choice.
I think the best one was when Ted Cruz and Donald Trump
used REM’s “It’s The End Of The World As We Know It” at an anti-Iran deal
rally. REM’s Michael Stipe responded
thusly: "Go fuck yourselves, the lot of
you -- you sad, attention-grabbing, power-hungry little men. Do not use our
music or my voice for your moronic charade of a campaign." Boom!
Down goes Frazier!
The public embarrassment to these idiot politicians—to be
told, flat-out, that no, you’re not one of the cool kids—is rich, one of the
better side-shows to the sad circus that is the Republican presidential
race. But it might surprise you that the
legality of using popular recordings
in a political campaign is not as clear as you’d think. It’s not a matter of copyright, that’s for
sure. The public performance of recordings is not protected by copyright
law, due to an odd glitch in the law that has its roots in the once-powerful
lobbying muscle of the radio industry.
The public performance of the songs, the compositions, is covered by ASCAP/BMI licenses, which are typically
owned by the venues where the songs are played or by the campaigns
themselves. When Trump’s people said
their use of “Rockin’ In The Free World” was OK because they had an ASCAP
license they were correct as a matter of copyright law. It was OK.
But that’s not the end of the story. What’s also implicated here, maybe, is the
performers’ and the songwriters’ rights
of publicity, the right to control the use of one’s image, name, voice, and
persona for something that looks like a commercial endorsement. And it’s a sticky wicket. As we’ve discussed here a couple of times,
there is no national standard for the right of publicity, it’s purely a matter
of state law, and among the states, it’s a beguiling mish-mash of differing
statutes, in states that don’t have statutes it’s a matter of common law, and
courts in all fifty states are constantly making rulings about the right of
publicity that go every which-a-way. So,
like we like to say about our relationships on social media, it’s complicated.
Let’s take New York.
New York has a law that bars the use of someone’s persona for
“commercial purposes,” which has been narrowly interpreted to mean advertising. Is blasting “Eye Of The Tiger,” ostensibly to
invoke Sylvester Stallone’s Rocky character being triumphant against
incalculable odds, used when some Christianista loser gets out of jail and an
opportunistic politician jumps on stage with her… is that “advertising”? Did anybody really think “Gee, is Survivor
against gay marriage?” Did anybody think
of Survivor at all? Did anybody seriously wonder if REM really supports Ted
Cruz or if Neil Young was a big Trump guy?
Both ASCAP and our pals at the Future of Music Coalition
have excellent online legal fact-sheet-guides to using popular songs in
political campaigns. But legalities
aside, justice is usually done: the flag-wavers for the Party of Stupid get
humiliated, the songs stop being used, and all is right with the world again.
Paul C. Rapp is a local entertainment attorney,
lifeguard, and woodsman who comes from a long line of Republicans who would not
be Republicans today because us Rapps are smarter than that.