9.17.15 SONGS IN THE KEY OF BULLSHIT

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?

            Let’s review a couple recent examples.  Union 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.