Since he declared his candidacy for President of the United States, Donald Trump has developed a complicated relationship with the artists whose music accompanies his political rallies.[1] Those who have publicly requested that Trump cease using their music include The Rolling Stones, Neil Young, Steven Tyler, Everlast, Adele, R.E.M., George Harrison’s estate, Queen, Paul Rogers, the estate of Luciano Pavarotti, Dee Snider, and Elton John. Though in 2008 Barack Obama was asked by the R&B duo Sam and Dave to stop playing the song “Hold on, I’m Comin’,” more often than not, Republicans, rather than Democrats, have had to confront issues of musical permissions, copyright, and musicians’ rights. Republican presidential candidates who have been asked by musicians to stop performing their songs include: Ronald Reagan in 1984 (Bruce Springsteen, “Born in the USA”); George H.W. Bush in 1988 (Bobby McFerrin, “Don’t Worry, Be Happy”); George W. Bush in 2000 (Tom Petty, “I Won’t Back Down”); John McCain in 2008 (John Mellencamp, “I Won’t Back Down”); and Mitt Romney in 2012 (Survivor, “Eye of the Tiger”). As I discuss in this article, most of these political campaigns had attained the proper public performance licenses to play the music they felt best accompanied their message; however, while a blanket license may cover musicians’ compensation and thus make the playing of their music perfectly legal, musicians may still protest the use of their voice and allure for purposes they find inauthentic to their image, brand, and identity.
In an essay published last month in The Common Reader, I argued that music has the ability to not only unite and excite political supporters, but also has the potential to assist in transforming those supporters into voters. This month, I focus on the challenging relationship between law and ethics with regard to political campaigns and musical copyright. Because Republican campaigns tend to have more issues with musical copyright and permissions than Democratic campaigns, most of my examples draw on Republican candidates’ experiences. What rights do musicians have beyond copyright and compensation? What rights of access to music do political candidates possess? Is copyright more important than the individual political agency of musicians?
It was during the 1970s that presidential campaigns began using what musicologists refer to as pre-existing music—that is, music that was originally written for a different purpose, as opposed to newly composed music. …George McGovern, who advocated withdrawing from the Vietnam War, used Simon & Garfunkel’s “Bridge Over Troubled Water” to underscore his message.
To begin, I provide a brief historical background that charts the rise of popular music in political campaigns. The use of pre-existing or popular music in political campaigns is a fairly recent movement; therefore, issues of copyright and compensation are relatively new to the political sphere. I then discuss the complexities of musical copyright, with a particular focus not only on where and how political candidates have the right to use music, but also where and how musicians can interrupt copyright to assert their own voices. I conclude by focusing on musicians who have asked Trump to cease using their music, arguing that such demands are not always about compensation, which copyright preserves, but rather are about musicians’ political agency and the protection of their brands.
Music in Campaigns: Historical Background
According to Dana Gorzelany-Mostak, a musicologist specializing in campaign music, American political campaigns began to use music frequently beginning in the 1840s; music was a useful way for politicians to make their political beliefs known to a largely illiterate general public. Between the 1840s and 1970s, most campaign music was composed specifically for an individual campaign.[2] For example, Alexander Coffman Ross wrote “Tippecanoe and Tyler Too” for William Harrison and John Tyler in 1840 (based loosely on the tune of “Little Pigs,” a minstrel song), and Jesse Hutchinson, Jr. of the Hutchinson Family Singers wrote “Lincoln and Liberty” for Abraham Lincoln in 1860. As technological innovations such as the radio and television advanced in the 20th century, candidates eventually gravitated toward slogans that could be used in advertisements. The 1960 “Kennedy For Me” slogan offered a catchy tune while simultaneously highlighting John F. Kennedy’s experience, youth, and new ideas (although the tune most associated with Kennedy’s campaign was a re-working of Jimmy Van Heusen and Jule Styne’s “High Hopes” from the 1959 Frank Sinatra film, A Hole in the Head). Doubtless, Sinatra’s energetic and highly public support of Kennedy had much with the adoption of this song and was a rare example of a campaign using a pre-existing tune. In 1952, Broadway songwriter Irving Berlin wrote “I Like Ike” for Dwight D. Eisenhower; this song and its accompanying advertisement remains on Time Magazine’s list of top 10 campaign ads.
In the 1970s, presidential campaigns began using what musicologists refer to as pre-existing music—that is, music that was originally written for a different purpose, as opposed to newly composed music. In almost every case of pre-existing music used in presidential campaigns, candidates selected popular music. In 1972, George McGovern, who advocated withdrawing from the Vietnam War, used Simon & Garfunkel’s “Bridge Over Troubled Water” to underscore his message. In his campaign for re-election in 1984, Ronald Reagan used Lee Greenwood’s “God Bless the U.S.A.,” which highlighted American patriotism, the military, and freedom, and matched his campaign’s message of hope and optimism for the future. Bill Clinton’s 1992 presidential campaign used “Don’t Stop” by Fleetwood Mac, a move that demonstrated an interest in finding songs with a “hook,” no matter what the surrounding lyrics and context were. In this case, “Don’t Stop” was written about the separation of keyboardist and vocalist Christine McVie from bassist John McVie, her husband of eight years; however, the hook, “Don’t stop thinkin’ about tomorrow … it’ll soon be here,” supported Clinton’s slogans about America’s future.
Even if the campaign is in compliance with copyright law, musicians may still have legal grounds to stop campaigns from using their music—and gain compensation.
In the 21st century, the Internet and social media platforms have begun to play a bigger role in presidential candidates’ political campaigns, including candidates’ use of music. Supporters have been given the option to vote on campaign songs (as in Hillary Clinton’s 2008 campaign), or upload their own videos with music of their choosing on YouTube, and candidates can share playlists over Spotify. As supporters gained more access to candidates through social media platforms, candidates’ musical preferences and selections began to be featured more prominently in their campaigns. At the same time, candidates have relied more and more on pre-existing popular music to send familiar messages to their supporters. However, with increased use of popular music during an age in which candidates’ every move and decision are quickly posted online, campaigns must follow strict rules of conduct regarding copyright.
Musical Copyright: A Brief Primer
In order to avoid issues of copyright infringement, campaigns often purchase blanket licenses from Broadcast Music, Inc. (BMI) and/or the American Society of Composers, Authors, and Publishers (ASCAP), organizations that collect license fees and distribute royalties to songwriters, composers, and music publishers. These licenses cover vast libraries of popular music, and as long as the campaign purchases a public performance license, the campaign will almost certainly be found in compliance with copyright law for music played at rallies and conventions. Specific venues may also have blanket licenses, but ASCAP explains that most of these licenses do not include events such as conventions, expositions, or campaign events.
However, even if the campaign is in compliance with copyright law, musicians may still have legal grounds to stop campaigns from using their music—and gain compensation. For example, ASCAP notes that campaigns could be found liable under the three following claims:
- “Right of Publicity,” which can protect the image of famous artists
- The “Lanham Act,” which “cover[s] the confusion or dilution of a trademark through unauthorized use”
- “False Endorsement,” in which a candidate’s use of a musician’s work implies that musician’s support of the candidate
In situations in which musicians do not wish for a candidate to play their music, musicians can send a cease-and-desist letter, sue for false endorsement (also known as false advertising), or pull songs from the blanket license. Both BMI and ASCAP have separate licenses for political entities or organizations so that musicians can withdraw rights to perform a song under the blanket license. For instance, following the Republican National Convention, Queen pulled “We are the Champions” from the Trump campaign’s blanket license.
Courts have recently ruled on the side of musicians in cases regarding campaigns and musical copyright. In 2008, Jackson Browne sued presidential candidate John McCain and the Ohio Republican Party for using “Running on Empty” in a campaign ad against President Obama. Two years later, in 2010, David Byrne of the Talking Heads sued Florida Governor Charlie Crist for his use of “Road to Nowhere” in a campaign ad against rival Marco Rubio. In both cases, the musicians won; McCain, the Ohio Republican Party, the Republican National Committee, and Crist paid an undisclosed penalty and gave public apologies.
In both cases, musicians won based on the claim of “false endorsement.” False endorsement means that a candidate’s use of music suggests a musician’s support or endorsement of that candidate. For example, in 2012, Somali-born rapper K’Naan released a statement requesting that Mitt Romney cease using “Wavin’ Flag.” K’Naan argued that Romney, whose views on immigration greatly differed from K’Naan’s, was “hurting his brand.” Out of respect for K’Naan, the Romney campaign immediately stopped using “Wavin’ Flag,” and no court case resulted; however, the case study nevertheless offers a useful glimpse into how “false endorsement” claims work. Peter DiCola, a law professor at Northwestern University, explained the purpose of the false endorsement claim to NPR in 2012: “The heart of trademark is supposed to be consumer confusion. The idea would be that fans or listeners or just the general public would be confused that K’Naan was endorsing Mitt Romney. And [K’Naan] describes his fans complaining on blogs about ‘Why did he give a license to Romney?’ and ‘Why would he give permission?’”
The court cases listed above have another similarity: both “Running on Empty” and “Road to Nowhere” were featured in candidates’ television ads. Television commercials, YouTube videos, and other cases in which music is synched with video, are not protected under ASCAP and BMI’s public performance licenses; instead, campaigns must pay royalties to both the songwriter and the record label (or whoever owns the recording itself). Neither Browne nor Byrne were asked permission for the use of their songs in these cases.
Given that Trump is not and has never advertised himself as a “typical” political candidate, his continued use of songs when songwriters object intensifies his image as an outsider. Though common political convention states that a candidate should stop use of a given song when a songwriter protests, conventional wisdom only applies to conventional candidates.
Even if a candidate has purchased the right to use a given song, if a musician objects to the candidate’s use of that song, traditionally, the candidate has ceased using it. This was the case for Mitt Romney’s 2012 campaign (K’Naan’s “Wavin’ Flag”), just as it was for Ronald Reagan in 1984 (Bruce Springsteen’s “Born in the U.S.A.”). According to Sherwin Siy, an expert on copyright law, it is often in a campaign’s best interest to stop using the song if a musician objects: “The optics of it are so bad that there’s really not much point in continuing to use a piece of music when the musicians really don’t want you to.”
However, the Trump campaign has unapologetically continued to use songs musicians have publicly asked them not to use, flouting yet another political convention. As Tevi Troy of Politico writes, “It’s not the law that stops politicians from using certain songs; it’s the embarrassment factor, which has been significant.” While most candidates’ desire to appear law-abiding and to demonstrate concern for the beliefs of others triumphs over their wish to use a particular song in their campaign, Trump seems to have no such misgivings (though when Dee Snider of Twisted Sister, and a former contestant on The Apprentice and Celebrity Apprentice, asked Trump to stop playing “We’re Not Gonna Take It,” despite having initially given consent, Trump did stop).[3] Given that Trump is not and has never advertised himself as a “typical” political candidate, his continued use of songs when songwriters object intensifies his image as an outsider. Though common political convention states that a candidate should stop use of a given song when a songwriter protests, conventional wisdom only applies to conventional candidates.
Voice and Political Power
The potential for embarrassment stems, at least in part, from the power struggle that occurs between musicians and political candidates when musicians publicly state that they were never asked permission for use of their music. Despite the fact that in most cases musicians need not be asked permission, candidates usually seem loathe to ignore public figures who are often particularly popular to potential voters. Many musicians object to political uses of their songs with the argument that their song reflects their own voice, beliefs, and ideals—not that of particular candidates. The use of music in political campaigns runs the risk of transforming that musician’s voice into the candidate’s voice.
For instance, The Rolling Stones objected to the Trump campaign’s use of “You Can’t Always Get What You Want” following his presidential acceptance speech at the Republican National Convention. For Trump, the song was an ironic commentary on his candidacy, as if to tell Republicans, “Maybe I’m not the candidate you wanted, by ‘you just might find, you get what you need.’” For The Rolling Stones, the song likely reflected the mixed bag of massive success and personal struggles the members of the band faced in the 1960s. It can be a song of hope or of disillusionment. However, according to Mick Jagger and The Rolling Stones, Trump’s use of the song, and its implicit suggestion that he and his beliefs are “what you need,” conflict with the political voices of the band members.
Most musicians who have criticized the Trump campaign’s use of their music and voice have served as both the composer and the performer; however, one notable exception is Trump’s use of “Nessun dorma,” a well-known aria from Italian composer Giacomo Puccini’s opera, Turandot (1926). The Trump campaign frequently uses what is arguably the most famous recording of the piece, one by the late tenor Luciano Pavarotti from 1972. This recording was made popular when BBC television used it as the theme song for the 1990 FIFA World Cup. For Trump, the ending of “Nessun dorma,” which features Pavarotti repeating “vincerò,” or “I will win,” higher and higher in his range until finally reaching a dramatic sustained climax, may signify his own power and stamina. However, Pavarotti’s widow, Nicoletta Mantovani, and three of his daughters, have demonstrated concern for Trump’s use of Pavarotti’s signature aria. After the Republican National Convention, Mantovani issued a statement, explaining, “We learned today that the aria ‘Nessun dorma’ performed by Luciano Pavarotti is being used [on] the Donald Trump soundtrack. We remind you that the values of brotherhood and solidarity that Luciano Pavarotti upheld throughout his artistic career are incompatible with the world vision of the candidate Donald Trump.” For Pavarotti’s family, it does not matter that Pavarotti did not compose “Nessun dorma”; Pavarotti’s voice is intimately and uniquely tied to the song and its recent history. For Mantovani, the Trump campaign’s use of “Nessun dorma” as recorded by Pavarotti was an uncomfortable misappropriation that lent Pavarotti’s voice to a candidate with whom, Mantovani believes, Pavarotti would have found great difference.
For Trump, the ending of “Nessun dorma,” which features Pavarotti repeating “vincerò,” or “I will win,” higher and higher in his range until finally reaching a dramatic sustained climax, may signify his own power and stamina.
Michael Stipe, the former lead singer for R.E.M., made the connection between musicians’ music, voice, and power explicit when he told Trump, “Do not use our music or my voice for your moronic charade of a campaign” (Stipe’s message came from bassist Mike Mills’ Twitter page). Trump had played “It’s the End of the World as We Know It (And I Feel Fine)” as he entered a rally in Washington D.C. In his statement, Stipe demonstrates anger that the band’s song, which was initially written as an apocalyptic stream-of-conscious text with a surprisingly cheerful beat, was re-purposed to support Trump’s message of fear. Specifically, Stipe is concerned that his voice, as lead singer, may be used to promote Trump’s conservative message—an issue Stipe and R.E.M., who in their heyday were known for helping to raise funds for environmental, feminist, and human rights causes, and who in 2004 supported Democratic presidential candidate John Kerry in a political concert tour, would have taken seriously.
Some musicians, particularly those who are overtly left-leaning, may enjoy the attention they receive when they refuse a politician the right to perform their music. For instance, when Wisconsin Governor Scott Walker, as a presidential hopeful, played “I’m Shipping Up to Boston” by the Dropkick Murphys, the band members responded with the following tweet: “@ScottWalker @GovWalker please stop using our music in anyway … we literally hate you !!! Love, Dropkick Murphys.” Such a blunt response over social media, rather than through perhaps more official means, such as a letter to the Walker campaign or an official statement, suggests that the Dropkick Murphys were more interested in attention than a lawsuit (in a Facebook post, the band elaborated, “We feel that we have the right to ask to not be associated with certain events or people … This isn’t a legal issue to us.”) However, it may also not be a “legal” issue due to the potential expense of hiring attorneys to face candidates in court—and for a candidate like Trump, who has been accused of using legal action to bankrupt business vendors to whom he owes money rather than paying them for services rendered, this may be a greater concern. Still, musicians such as the Dropkick Murphys face a challenging dilemma: allow their music to be performed by a candidate who would offend many of their fans, or speak against that candidate, and risk upsetting fans who do support that candidate.
There are, of course, important commercial claims to consider when examining musicians’ objections to politicians’ use of their music. While musicians may protest when politicians play their music at campaign events, they do not usually object to their fans holding similar political beliefs; in other words, musicians may not allow Trump to play their music, but they likely would not stop a Trump supporter from purchasing albums, tickets, or merchandise. As Republican campaign strategist Steve Schmidt explained, “All these artists are delighted to sell concert tickets to independents and Republicans.” Musicians may therefore suffer embarrassment as political supporters point out the seeming contradiction between musicians’ political beliefs and their interest in turning a profit.
Musicians may not allow Trump to play their music, but they likely would not stop a Trump supporter from purchasing albums, tickets, or merchandise. As Republican campaign strategist Steve Schmidt explained, “All these artists are delighted to sell concert tickets to independents and Republicans.”
Ultimately, musicians risk losing their individual voice when candidates with whom they disagree use their music to support their own political agendas. As a cultural product, music can be interpreted in various ways that musicians may not have intended; however, presidential hopefuls and other politicians have significantly higher visibility and political power. Therefore, the stakes surrounding politicians’ interpretations of music are much greater than the stakes for fans’ interpretations. In years past political campaigns have considered both the law and musicians’ political agency. However, given Trump’s insistence that he is the “law and order” candidate and assertions that he has the ability to essentially buy favors from politicians, it should be no surprise that Trump expects to use any song that he has paid for in a blanket license, regardless the potential for musicians’ loss of their unique voice and agency. For Trump, any consumer has the right to interpret a song they have purchased in whatever way he or she pleases. Because the Trump campaign has purchased blanket public performance licenses, he is in all likelihood not breaking copyright laws—just the laws of convention that usually govern campaign conduct. By playing the songs anyway, Trump essentially fulfills many of his supporters’ expectations for their strongman candidate: that Trump is a presidential candidate who does not apologize, who does not back down, and does not yield. Just as one Trump supporter told The Atlantic’s Conor Friedersdorf:
“This is a guy who isn’t afraid to abuse the abuser [the establishment]. He has and will continue to humiliate the establishment politicians who try to stand up to him by exposing them for who they are. He will lash out at reporters and media crudely and without tact simply because he can. His supporters feel vindicated when he attacks those people who have misled them, a small satisfaction when your way of life is fading away.”
Trump is seen by his supporters as a powerful man who does not necessarily need the support of politicians, the media, or in this case, popular musicians. His refusal to compromise, even in the case of musical copyright, may just offer his supporters a measure of vicarious empowerment they feel they lack in the current political system.
