Can You Really Stop Mitt Romney From Using Your Song?

It’s easy to imagine a punk band having problems with Mitt Romney: He worked in private equity, his policies are conservative, and the sport of dressage doesn’t exactly rock. But most of these disagreements don’t involve lawyers.

On Wednesday the band Silversun Pickups sent a cease-and-desist letter to the Romney campaign, asking it to stop playing the song Panic Switch at campaign events. In a sarcastic tone rarely found in legal correspondence, the band’s lawyer pointed out that the song’s lyrics would be unlikely to inspire potential voters, mentioned that “we’re pretty sure you are familiar with the laws of this great country of ours,” and asserted that Romney’s use of the song violated both copyright and trademark laws.

Musicians have objected to the use of their music in political campaigns—almost always those of the GOP—since Ronald Reagan used Bruce Springsteen’s Born in the U.S.A., also apparently without listening to the lyrics. Such disputes between musicians and campaigns are becoming more common, especially among conservative candidates. This year alone, the rapper K’naan implied that he might take legal action to prevent Romney from playing Wavin’ Flag at campaign events and the co-writer of Eye of the Tiger filed a suit to stop Newt Gingrich from using that song. Four years ago, Heart objected when Sarah Palin walked onstage to Barracuda and Jackson Browne sued the McCain campaign and the Ohio Republican Party for putting his song Running on Empty in a television campaign ad.

Although journalists love to inject a bit of pop culture drama into campaign season—several publications reported that the Romney campaign received a cease-and-desist “order” instead of just a letter—the use of music at political events hardly ever leads to legal action. Campaigns almost always stop using music when songwriters ask. (Romney’s campaign issued a statement saying that the use of Panic Switch was inadvertent.) Like bars and restaurants, political campaigns need public performance licenses from ASCAP and BMI, which distribute money to songwriters, and the Romney campaign has a license that covers songs by the Pickups. This covers almost all uses of songs from a copyright perspective.

The Silversun Pickups might also have a trademark case, according to their lawyer, Tamara Milagros-Butler. If a campaign uses music in a way that implies a songwriter’s endorsement, that would violate his rights under the Lanham Act. “The question is whether a reasonable person would think that this use constitutes an endorsement,” Milagros-Butler says. But several lawyers say this would apply to music used repeatedly, not tracks played at one or two events.

One reason this issue is confusing is that candidates have faced legal problems for the unauthorized use of music in television commercials: McCain apologized for using Browne’s Running on Empty in a television ad, and former Florida governor Charlie Crist settled with David Byrne for using the Talking Heads song Road to Nowhere in a 2010 spot. (In an appropriately arty touch, given Byrne’s sensibility, Crist apologized in a YouTube video.) But copyright treats the use of music in video very differently; it requires a “synchronization license” from a songwriter or publisher, as well as permission from the owner of the recording.

If the use of live music rarely presents a serious legal issue, why send out a cease-and-desist letter when an e-mail to a candidate’s office could accomplish the same goal?

In some cases, musicians are appealing less to legal principles than the court of public opinion—which is why many such letters go out along with press releases. Musicians don’t want fans to think they approve of a candidate they don’t like, and legal letters have become so expected that they could be conspicuous by their absence. The objections of musicians are becoming almost as theatrical as the candidates’ use of their songs.

“The claim that exists is whether a band is essentially conscripted to serve as an involuntary endorser,” says Lawrence Iser, a lawyer at Kinsella, Weitzman, Iser, Kump & Aldsiert who represented Browne and Byrne in their respective cases. But he thinks that would require more than the occasional use of music at events. So far, he says, “no one has tested whether a band can stop the use of a song.”