In 2004, Howard Dean’s staff decided “We Can,” a song by country star LeAnn Rimes about achieving the impossible, was the perfect soundtrack for his presidential bid. So Joe Trippi, Dean’s campaign manager, secured the rights and contacted Rimes for permission – she agreed, as long as it was a cover version. Yet almost every time Dean walked into a packed stadium or ballroom, U2’s “Beautiful Day” was playing overhead. “I’d go up to the advance person and be like, ‘What the fuck? That’s not our message,'” Trippi says. “We did it right, and I still couldn’t make sure that damn song played.”
As Donald Trump recently demonstrated, when he blared Neil Young’s “Rockin’ in the Free World” and received a public rebuttal from Young himself, candidates often neglect little details when picking campaign songs – like, say, contacting the songwriters. Over and over, this leads to embarrassing situations, most famously when Bruce Springsteen upbraided President Reagan for planning to install “Born in the U.S.A.” as a backdrop for his reelection campaign in 1984, but also more recently, when union-bashing Wisconsin Governor Scott Walker prominently used “I’m Shipping Out to Boston” at an Iowa event and received a “we literally hate you!!!” tweet from pro-union punk band Dropkick Murphys.
Although Trippi is a Democrat, and this type of thing usually happens to Republicans, he believes it’s generally due to campaign negligence rather than political calculation.
“Nine times out of 10, it’s a young advance person who thinks it’s a cool song to play when the guy’s walking in and the candidate hasn’t a clue what was playing,” he says. “In this case, Donald Trump could have walked in that room: ‘I want that Neil Young song, and it better be playing loud.’ But I don’t know.” (Reps for Trump, as well as Walker, Mitt Romney and Senator Marco Rubio, who have run into this problem repeatedly throughout recent election cycles, did not respond to requests for comment.)
Either way, the impact of such unauthorized use can be devastating for a songwriter. “The artist gets drawn into the question of whether or not to take any action, and run the risk of giving the politicians some additional publicity, or [allowing] the public for one second to think that someone like Neil Young was endorsing Donald Trump,” says Jon Landau, Springsteen’s longtime manager. “It’s kind of a reverse endorsement trap – Ronald Reagan declares Bruce as one of his own, and then Bruce has to either let it stand or actively disassociate. When the confusion gets big enough, most artists will, one way or the other, step in.”
Of course, the opposite effect can happen. Mick Fleetwood recently said Bill Clinton’s campaign never requested permission for what became his iconic 1992 campaign anthem, “Don’t Stop,” but the band generally voted Democratic and didn’t object to the exposure. On a smaller scale, Gym Class Heroes’ “The Fighter” recently wound up on Hillary Clinton’s publicly released Spotify playlist (after her presidential campaign received permission from the band). “If it wasn’t Hillary, and I didn’t necessarily agree with their stance, it’d definitely be an awkward position,” says the band’s Travie McCoy, who sang and co-wrote the song. “When you’re in a position of being super-impressionable on people, you’ve got to be careful how you step.” Several artists who’ve had conflicts with politicians in recent years on this issue, including Dropkick Murphys, Axwell and Ingrosso, Heart, Tom Petty, Don Henley and Van Halen, turned down interview requests for this story.
Technically speaking, copyright laws allow political candidates to use just about any song they want, as long as they’re played at a stadium, arena or other venue that already has a public-performance license through a songwriters’ association such as ASCAP or BMI. However, the law contains plenty of gray area. If a candidate refuses to stop using a song in this scenario, an artist may be able to protect his “right of publicity” – Springsteen’s voice blaring over a loudspeaker is part of his image, and he has a right to protect his own image. “It’s untested in the political realm,” says Lawrence Iser, an intellectual-property lawyer who has represented the Beatles, Michael Jackson and many others. “Even if Donald Trump has the ASCAP right to use a Neil Young song, does Neil have the right to nevertheless go after him on right of publicity? I say he does.”
Iser represented David Byrne when the ex-Talking Head successfully sued Florida Republican Charlie Crist for using “Road to Nowhere” in a video to attack opponent Marco Rubio during a 2010 U.S. Senate campaign. He also helped Jackson Browne win a suit against John McCain in 2008 when the Republican presidential candidate played “Running on Empty” in an ad bashing Barack Obama on gas conservation.
“Why does it keep happening? I would say arrogance. Or because [candidates] want to use music in order to associate [with] fans of the artists whose music they’re using, and they think they can’t get permission,” Iser says. “What’s that expression? ‘It’s better to beg forgiveness than to ask [only] to get turned down.'”