Campaign Songs and Copyright Infringement?

by John Aquino on 02/02/12

A turbulent political campaign season can bring litigation.

On Jan. 30, 2012, songwriter Frankie Sullivan alleged in litigation filed in the U.S. District Court for the Northern District of Chicago that Republican Presidential Candidate Newt Gingrich had violated his copyright by playing the song "Eye of the Tiger" from the 1982 movie Rocky III at rallies, Rude Music Inc. v. Newt 2012, N.D. Ill., 1:12-cv-00640,filed 1/30/12. And this is just the most recent incident involving campaign songs and attorneys. In 2011. Tom Petty’s lawyers sent a cease and desist letter to Rep. Michelle Bachman who was using his song“American Girl” in her campaign for the Republican nomination.

Political campaigns have adopted popular songs almost since the founding of the United States, from Martin Van Buren's 1840 use of “Rockabye Baby” to Harry S. Truman's 1948 campaign reuse of “I'm Just Wild About Harry” to Bill Clinton’s 1992 adoption of Fleetwood Mac's“Don't Stop (Thinking About Tomorrow),” which the reunited group also agreed to perform at Clinton's 1993 inaugural ball.

But just as there have been singers and copyright holders who were excited about a campaign’s use of material, there was also Bruce Springstein who objected to Ronald Reagan's 1984 use of “Born in the USA, and Rondor Music International’s annoyance when in 1996 Bob Dole’s presidential campaign Sam Moore of the group Sam & Dave reworded its “Soul Man,” to “Dole Man.”

What usually happens is that the performer or copyright holder complains, and the song is withdrawn. I remember that in 1964 there was a monster hit musical on Broadway called Hello, Dolly!, which five years later became a movie of the same name starring Barbara Streisand. The title song of the musical became a hit record for the jazz trumpeter and singer Louis Armstrong, who later sang the song with Streisand in the movie. During the 1964 presidential campaign, Republican nominee Barry Goldwater’s staff appropriated the title song and changed the first line to “Hello, Barry!” The producer of Hello, Dolly!, David Merrick, announced that the song was being used without permission and that he was dedicating the song to the campaign of the Democratic candidate Lyndon B. Johnson, whose campaign used the song, changing the first line to, “Hello, Lyndon!” Johnson won. Four years later, Merrick dedicated another song from another one of his shows—“Step to the Rear”(“Will everyone here kindly step to the rear and let a winner lead the way”) from How Now, Dow Jones—to the campaign of the Democratic presidential nominee Hubert Humphrey. The show was not as successful as Hello, Dolly!,” running only 220 performance with no movie sale, and Humphrey lost.

But Frankie Sullivan is actually suing. We, of course, have to wait for the case to play out. The courts have indicated that political speech is entitled to a broader scope of protection under the First Amendment than ordinary commercial speech. And, as noted, when challenged the candidates have generally just pulled the songs.

But Sullivan was quoted as saying the use of his group Survivor’s music without permission can falsely give people the impression that the group is a supporter of Gingrich’s campaign. He doesn’t say this in the complaint, which just states that the use of the song by the campaign was “unlicensed and unauthorized.” But in the quote Sullivan seems to be offering a consumer confusion argument that is more appropriate for trademark law. He could conceivably have filed the litigation under the false endorsement provision of the Lanham Act or state-based right of publicity actions

But he didn’t sue under the Lanham Act or for trademark infringement or violation of state publicity laws. He sued for copyright infringement, which is a strict liability tort. Innocent copyright infringement is still infringement. But consumer confusion, to the best of my knowledge, is not something normally discussed in copyright infringement cases, so this argument would be an attempt to expand the field.

If the venue where the song was played had a license from ASCAP or BMI, then the use would not appear to be without permission, although the Sullivan quote suggests they may be going beyond the issue of license.

But again, all we have is the complaint. We’ll have to see how it plays out.

Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.v