Keep It to Yourself: Permission to Rock Denied, or, Excuse My French
The popular practice of pinching pop tunes for political purposes — without permission.
Why are Jay-Z and Kanye West laughing? My guess is they’re in hysterics over new French president François Hollande’s use of their song “Niggas in Paris” in this year’s election. To date, the zillionaire rappers haven’t objected to the appropriation of their hit. Perhaps Hollande’s stupendously politically-incorrect use of le mot ‘N’ still cracks them up. Zut alors!
KI2Y Pop Quiz! Match the politician with the artist/song they used without permission:
- Michelle Bachmann A. K’naan/‘Wavin’ Flag’
- Eric Cantor B. Boston/‘More Than a Feeling’
- Charlie Crist C. Aerosmith/‘Back in the Saddle’
- Mike Huckabee D. Talking Heads/‘Road to Nowhere’
- John McCain E. Sam & Dave/‘Hold On, I’m Coming’
- Barack Obama F. Bruce Springsteen/‘Born in the USA’
- Sarah Palin G. Rush/‘Tom Sawyer’
- Rand Paul H. Jackson Browne/‘Runnin’ on Empty’
- Ronald Reagan I. Tom Petty/‘American Girl’
- Mitt Romney J. Heart/‘Barracuda’
[See below for the answers, pilgrim.]
We’ve got our own election year going on, so hilarious politicians vs. rocker hi-jinks are already underway. The way we do it here in the good ol’ USA is you take an impossibly square candidate and pair him or her up with a once-popular hit for their campaign theme song without first getting permission from the artist. For example, in January, Newt Gingrich was sued by 80’s has-beens Survivor for using their hit “Eye of the Tiger” without authorization. You get the idea.
What are the intellectual property implications of a politician using a popular song without permission? Well, for starters, it constitutes copyright infringement. Use of a song in a campaign commercial or video requires a synchronization license from the song’s publisher and/or the artist’s record label to match the music with accompanying images. And, in order to broadcast or stream the propaganda on television, radio or the Internet, the station or web site must hold a public performance license. In addition, if you’re going to be cranking the tune through the p.a. at rallies, conventions, whistle-stops etc. those venues need to have a “blanket” performance license from organizations like BMI or ASCAP as well.
This doesn’t mean that if the campaign obtains the proper licenses the candidate is safe from an action by an offended artist. A campaign might be in compliance with copyright law but still be vulnerable to other intellectual property claims. Typically, aggrieved performers assert claims for violating their rights of publicity, or for false endorsement. The nature of the former claim is that the campaign has misappropriated the image of the performer, which might have commercial value (unless you are a member of Survivor). The latter claim for false endorsement is simply that use of the song wrongly implies that the artist supports the candidate in question. An artist may also pursue trademark claims for false advertising created by use of a song; literally the assertion that the candidate’s association is bad for the artist’s brand. For example, it turns out that Mitt Romney is not a super-mad homey whose fly moves will enhance your street cred. (See answers to pop quiz.)
Most of the politicians that get popped for their unauthorized use are lawyers, so why do they keep making the same goofball error of hijacking a song whose author is bound to take offense? Yes, you have to be a bit of a sociopath to aspire to a high elected office, but these are folks that have published books themselves – i.e. copyright owners. You’d think someone might hep them to the notion that pinko commie rock musicians might not be down with right-wing politicians lifting their tunes to support their extreme views. [Note to self: find out why Republicans don’t routinely license songs by the Nuge.]
Perhaps it’s a simple cost-benefit analysis: it’s not worth the hassle and embarrassment of trying to secure a license that would not likely be given, so just go ahead and use the song and see what happens. Sure, a little negative publicity might ensue, but by then the appearance would have been made and the association between song and candidate made. Usually, the matter disappears after the campaign receives a strongly-worded cease and desist letter from a dashing intellectual property attorney, like me, and sheepishly discontinues use of the song. Sometimes, however, the politician is sued and has to pay substantial damages for their infringement. Former Florida Governor Charlie Crist not only paid to settle a lawsuit brought by David Byrne, but was compelled to make a video apology. Former Talking Heads frontman Byrne crowed: “I am one of the few artists who has the bucks and (guts) to challenge such usage. I’m feeling very manly after my trip to Tampa!” Damn, I gave away an answer to my pop quiz!
Copyright claims for music misappropriation are not uncommon in France, by the way. In April, French label Naïve forced the removal of M83’s song “Midnight City” from a video produced by right-wing party le Front National (whose scary candidate Marine Le Pen was then in third place in the presidential election). However, back at the chateau, François Hollande clearly wasn’t worried about any appearance of impropriety. His use of “Niggas in Paris,” accompanied by footage of his travels around the suburbs of the city, was intended as an indictment of incumbent Nicolas Sarkozy’s poor relations with the minorities that populate those arrondissements. Ultimately, the video proved to be a strategic coup rather than a racist faux pas. As long as J and Kanye keep laughing, that is.
Answers to Pop Quiz: 1-I, 2-C, 3-D, 4-B, 5-H, 6-E, 7-J, 8-G, 9-F, 10-A.