You’re in a band. You turn yourself inside out for your music. You struggle through years of poverty, obscurity, and doubt, and then you score a hit; you make a name for yourself, touch people’s hearts, and feel as if your art has finally made an impression. Then along comes some stuffed suit with an agenda. He stands out in public, waving your song like a balloon and, without asking, uses it to convey opinions you not only disagree with, but go against everything you stand for. He takes your art completely out of context, twists it into the shape of his own nefarious pursuits, and there’s not a damn thing you can do to prevent it. Or is there?

“All young musicians should take a class in the business and legal aspects of the music business in order to understand the basic concepts of copyright law,” wrote Lawrence Iser, attorney for Jackson Browne, in an email to Crawdaddy!. “Once a musician understands the basics of copyright law as it applies to the music business, he or she will know enough to call a lawyer when he or she suspects a work has been infringed.” In other words: No, there’s essentially nothing you can do to prevent the above scenario. Depending on the details of the situation, there might not even be anything you can do after the fact. That is why, again and again over the course of this enflamed election season, the public has heard artists’ angry (yet legally toothless) pleas in the wake of their works being trampled, and it keeps on happening.  

Even by election season standards, this one has been particularly absurd: Jackson Browne, John Mellencamp, Heart, Van Halen, Frankie Valli, ABBA… the list is growing quickly of artists falling victim to misappropriation by the McCain/Palin campaign. Sly Stallone may be a McCain supporter, yet the copyright holders to “Gonna Fly Now” (AKA the theme song to Rocky) have requested that the campaign stop using the song at rallies. In response to McCain’s prominent use of “Johnny B. Goode”, Chuck Berry made a point of coming out in vehement support of Barack Obama, and as recently as October 8th, the Foo Fighters joined the chorus of the indignant, smeared by unwarranted association with the McCain campaign. McCain even co-opted (and was rebuked) for the song “Still the One”, a song not only penned and copyrighted by a currently sitting democratic congressman (John Hall, formerly of the band Orleans), but for which George W. Bush also received a cease-and-desist letter during his 2004 re-election bid.

Part of the storm is that politicians are depending more than ever on hitching a ride with popular culture to reach their targeted demographics, while the other part is the increasing acceptability for artists to raise a fuss if they don’t like it when it happens. The sad fact is that there are no barbed-wire fences to keep uninvited hands off an artist’s intellectual property. Both the property and its theoretical protections are as intangible as the very ideas of right and wrong, and so there is nothing to physically prevent a criminal from committing this crime. Meanwhile, the music industry is as hell-bent for profit as politicians are for power, and so the system is structured to make licensing easy in some cases and hard in others, as long as it’s as lucrative as possible and minimizes, when necessary, the possibility of roadblocks in the form of artists’ objections.

Historically, when a musician has taken a stand against a politician for misappropriated music, it has usually been in the form of a letter and/or public statement, which the offending party either obliged or ignored. In 1984, when Ronald Reagan famously dropped Bruce Springsteen’s name in a campaign speech, there was no music involved; Springsteen diplomatically dissociated himself later at a concert, yet it was big news at the time for a pop superstar to speak out against the Gipper. In 2000, Tom Petty threatened to sue George W. Bush for misappropriation of the song “I Won’t Back Down”, though Bush dropped the song, so Petty didn’t sue. The fact is that rarely, if ever, has a prominent musician actually filed suit against a politician for misappropriation of music. Therefore, there is little by way of precedent to deter politicians from bathing in random songs on the stump today like so much confetti, without a thought for the opinions of the artists. Thankfully, though, among the many firsts taking place in this election season, there’s Jackson Browne.

Back in August, the Ohio Republican Party ran an ad on Ohio television mocking Obama’s energy policy to the tune of Jackson Browne’s 1977 hit, “Running on Empty.” The ad quickly became a popular YouTube curiosity. Browne’s lawyers issued a cease-and-desist letter, after which the ORP pulled the ad. Browne, a lifelong, outspoken Democrat, Obama supporter, Iraq War protester, and general progressive, wasn’t about to let the Republican campaign slink off with their ideological gains, nor allow any semblance of his art or persona be associated with the party. A week later, Browne filed a lawsuit against Senator McCain as an individual, the Republican National Committee, and the Ohio Republican Party, on charges of copyright infringement, false endorsement under the Lanham Act, and common law right of publicity infringement.

“It’s so easy to use someone’s music without their consent,” Jonathan Steinsapir, another of Browne’s attorneys in the case, said in a telephone conversation with Crawdaddy!. “I can’t really think of a way to stop someone from using it, except to take a stand, which is what I think Jackson is doing here; taking a stand so that others will think twice before they use his music without his permission.” Browne’s stand could have far-reaching implications for other musicians as well, whose works have been trampled in this way, regardless of party lines. Browne’s lawyers have made clear that the lawsuit is not politically motivated; it’s a very straightforward case of copyright infringement, made coincidentally exasperating by the fact that the infringement occurred in a shot against Obama, which is particularly “anathema to Jackson,” as Iser told the Wall Street Journal.

What gives Browne’s case a stronger position than the slew of other complaints against McCain is the fact that the song in question was not simply played out loud at an event, but edited and set to video for a television commercial. Playing a song aloud and setting a song to video are two different actions, which require different licenses. If they had used an entire, unedited master recording of the song in the commercial, a “master use license” would’ve been required. To edit or “sync” any part of a song with video, a synchronization license is required. These licenses can only be granted by copyright owners, which are usually record companies; however, Browne owns 100 percent of the copyrights to his music. It’s clear as can be that no license of either nature was sought or granted for the production of any ad, let alone an anti-Obama ad. “It’s interesting that we have someone running for president that doesn’t respect the copyright laws. It’s unfortunate,” Steinsapir said, apparently acknowledging that this part of the suit, at least, is a slam-dunk for Browne.

The majority of other complaints have come as a result of McCain’s irresponsible use of songs at his campaign rallies. To play a song aloud at a public event requires “public performance” rights, which are easy enough to acquire without an artist even knowing. (“Performance” in this case refers to just playing a recording of a song out loud; not an actual live performance.) When an artist signs to a record label, it is typicall
y required that the artist also register with one of the few giant organizations that deals with these rights most efficiently, namely ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc.), or the like. It’s a strictly financial issue about which artists aren’t given much option, so everyone from Black Flag to Jessica Simpson is registered with one or another of these organizations. These are non-profit societies that do nothing but collect royalties on behalf of artists every time their music is played in public, which is great, but there’s a catch.