Trump, Other Politicians Hit Sour Notes With Musicians Over Song Use

October 16, 2015

This month Donald Trump again joined the ranks of politicians who use popular songs in their campaigns without permission and face subsequent backlash from artists. Fenwick’s copyright litigation co-chair Laurence Pulgram spoke to Corporate Counsel and Bloomberg BNA about this trend.

“It’s become a time-honored tradition in politics to traffic in the good feeling singers create,” Pulgram told Corporate Counsel.

This month, Trump played Aerosmith’s song “Dream On” at a campaign rally. Lead singer Steven Tyler sent the Republican presidential hopeful a cease and desist letter asking him to discontinue using it publically. Trump had also used the song at other events and had received a similar warning the month before.

But Trump is not alone. “Jackson Browne, Jon Bon Jovi, Heart, the Foo Fighters, Van Halen and John Mellencamp all filed legal complaints against the McCain-Palin campaign in 2008,” Pulgram said.

The law surrounding politicians and legal rights to use songs without artists’ permission is complicated and somewhat ambiguous, Corporate Counsel reported, citing attorney analysis.

“It’s an uncertain area of the law because it’s rarely been tested,” said Pulgram. “Most of the time these cases aren’t raised in court, and when they are, the politician doesn’t want the distraction of a lawsuit and usually backs down.”

“It appears,” said Pulgram, “that the strategy being applied by political campaigns is that it’s better to ask forgiveness than permission.”

When speaking with Bloomberg BNA about the issue, Pulgram also noted that cases “increasingly recognize that copyright’s scope is to provide an incentive to authors to create, not to protect against embarrassment or even… against potential death threats” as in the case of Garcia v. Google which ruled that an actor claiming she had been deceived into acting in an anti-Islamic film could not demand YouTube remove the video for copyright reasons.

The full articles are available through the Corporate Counsel and Bloomberg ​BNA websites (subscriptions required).