POSTED: 1:30 a.m. HST, Feb 4, 2012
LAST UPDATED: 3:26 a.m. HST, Feb 4, 2012
Let's say you're a Republican running for president.
You're looking for a rousing pop anthem to pump up your troops and underscore your message. There's plenty of music out there, but you have a problem: Most of the pop stars, it seems, prefer Democrats.
Mitt Romney and Newt Gingrich were forced this week to stop using songs at their rallies after songwriters complained that the campaigns had played the pieces without permission. Strike another two songs from the Republican playlist: "Eye of the Tiger," by Survivor, and "Wavin' Flag," by the Somali-born musician K'naan.
"When you think about every iconic song that has emotional resonance for millions and millions of Americans, in almost every instance, Republican candidates can't use the song because the artist is not supportive," said Steve Schmidt, a Republican campaign strategist who was Sen. John McCain's campaign manager in 2008 and worked on the re-election campaign of President George W. Bush. "All these artists are delighted to sell concert tickets to independents and Republicans."
So rare is it for Republicans to get rockers' support that it surprised many in the music business when in early December Romney asked Kid Rock for permission to use "Born Free" during the campaign and got his blessing.
It seems that every campaign season the issue of politicians' use of pop songs without permission crops up, often with partisan overtones. And with the Internet making it easier for musicians to track the use of their songs, and with the country's politics becoming more bitterly divided, more musicians are making legal complaints and prevailing.
In 2008 Jackson Browne successfully sued McCain and the Ohio Republican Party for using his hit "Running on Empty" as the music for a campaign ad attacking the energy policies of Barack Obama. He won an undisclosed cash settlement and a public apology from McCain. Two years later David Byrne sued Gov. Charlie Crist of Florida for using the Talking Heads' "Road to Nowhere" in a commercial attacking his opponent Marco Rubio. The governor paid an undisclosed penalty and posted a videotaped apology on the Internet.
Because the politicians paid damages, the suits against McCain and Crist were a turning point, political strategists and copyright experts said. Before, there had been little incentive for campaigns to seek permission, since legal actions were rare. Until the recent cases, the only risk to the candidate was a spot of bad publicity.
"Because nobody sued, the candidates always thought they could get away with it, and they still think that today," said Lawrence Iser, a copyright lawyer in Los Angeles who represented Browne and Byrne. "What did you get? You got some publicity. You got a takedown letter. Typically the campaigns would stop using the piece."
The pace of complaints has picked up since 2008, when Ann and Nancy Wilson, the core of Heart, formally complained that Sarah Palin was using their hit "Barracuda" as a theme song without their permission. Last year Tom Petty forced Rep. Michele Bachmann to quit using his song "American Girl" at her events by sending her a letter.
In 2010 Don Henley, a longtime supporter of Democratic candidates, won a copyright lawsuit against Chuck DeVore, a conservative California Republican candidate for the Senate. DeVore had used satirical lyrics set to the backing tracks of Henley's "Boys of Summer" and "All She Wants to Do Is Dance" to attack his opponent, Sen. Barbara Boxer.
In the last month, Gingrich has been accused twice of violating copyright laws, first for playing "How Do You Like Me Now?" by the Heavy at a rally in Tampa, Fla., and then for using "Eye of the Tiger" by Survivor at several political events, going back to 2009.
Frankie Sullivan, a former member of Survivor who helped write "Eye of the Tiger," also went after Romney for playing the anthem at rallies, but Romney's campaign backed down and promised not to use it again, he said. Sullivan sued Gingrich this week, arguing he had violated copyright law not only by playing the song at rallies, but also by posting videos with it on YouTube.
The suit argues that Gingrich, the author of more than 40 copyrighted works, should have known better. That became fodder for the comedian Stephen Colbert, who invited the original singer from Survivor, Dave Bickler, on his television show on Thursday to sing a passage from one of Gingrich's books to the "Eye of the Tiger" melody. Sullivan said a song could lose value if it became entwined in the public's mind with the politician, he said. "My motives have nothing to do with politics," he said. "It's one of my babies, and I'm just exercising the laws of this great country."
Gingrich's campaign spokesman, R.C. Hammond, did not respond to several requests for comment on Sullivan's lawsuit. K'naan, the Somali-born rapper who lives in New York, said his motive for asking Romney to stop using "Wavin' Flag," an international hit in 2009, was purely political. He first learned from fans that Romney had played the song to pump up supporters at a victory rally in Florida this week. Right away he was deluged with Internet messages accusing him of selling out to a conservative politician.
"I got a flood of Twitter messages from people who assumed that it was all true, that I was now a supporter of Mitt Romney's campaign," K'naan said. "I'm for immigrants. I'm for poor people, and they don't seem to be what he's endorsing. My song being his victory song didn't seem quite right."
Andrea Saul, a spokeswoman for Romney, said the campaign had stopped using K'naan's song out of respect for his political views, even though the campaign bought blanket licenses from two public-performance societies — ASCAP and BMI — which pay royalties to members.
Experts on copyright law said such licenses, usually bought by restaurants and other businesses that play recorded music, do protect the campaign from many copyright complaints, but a politician can still be sued under the federal trademark law for false advertising if the use of the song implies that the musician has endorsed the candidate.
Choosing a song for a candidate is a tricky process, strategists said. Campaigns generally use music for two purposes. The first is the obvious need to motivate supporters. But the second is to underline a candidate's message. Bill Clinton did this in 1992 with the Fleetwood Mac song "Don't Stop," with its chorus, "Don't stop thinking about tomorrow," seemingly without complaint.
Conservative candidates have a more difficult time finding anthems, unless they turn to country stars. Politicians from Reagan to Palin have used Lee Greenwood's "Proud to Be an American," and Gov. Rick Perry of Texas made use of Toby Keith's "American Ride" in his recent Republican presidential campaign.
"What happens is the rock groups object to who's playing their music," said Ed Rollins, the longtime Republican campaign strategist. "They never seem to yell and scream at the other side. It's always the Republicans that they become unhappy with. They don't want their great music involved in the impure business of politics."