"Boston" founder complains about Huckabee's performace of songs

From AP/Google:

CONCORD, N.H. (AP) — The chief songwriter and founder of the band Boston has more than a feeling that he's being ripped off by Mike Huckabee.

In a letter to the Republican presidential hopeful, Tom Scholz complains that Huckabee is using his 1970s smash hit song "More Than a Feeling" without his permission. A former member of the band, Barry Goudreau, has appeared with Huckabee at campaign events, and they have played the song with Huckabee's band, Capitol Offense.

Scholz, who said Goudreau left the band more than 25 years ago after a three-year stint, objects to the implication that the band and one of its members has endorsed Huckabee's candidacy.

...

In his letter, Scholz referred to Huckabee as the "straight talk candidate," but that label more often is applied to Sen. John McCain, who has had his own troubles when it comes to his musical playlist. Last week, McCain's campaign agreed to stop playing John Mellencamp's songs "Our Country" and "Pink Houses" at his rallies after the liberal rocker complained.

Mellencamp had supported Democrat John Edwards, who recently dropped out of the race.

This kind of complaint always strikes me as interesting.  Artists and bands are often the first to champion free speech and the First Amendment when their own works are being censored or prohibited from distribution.  Yet, when others use them in ways that they object to politically, some complain like Scholz does here.   This is far from an isolated incident, as similar issues have arisen during the last two election cycles with George W. Bush's unapproved use in 2000 of "I Won't Back Down" by Tom Petty, "R.O.C.K. in the USA" by John Mellencamp, and "Brand New Day" by Sting and John Hall's "Still the One" in 2004.

Now, to be clear, this is rarely an issue of an uncompensated artist.  When a political candidate plays or performs these songs as an event, the only copyright implicated is that of the songwriter.  And since almost all pop songwriters routinely give blanket permission (via performing rights organizations such as ASCAP, BMI, and SESAC) to venues throughout the country for performances of their songs by any act, there is no real copyright violation occurring.

So what is the objection? Well, in some sense, it is the fact that the artists' personal work is being used to promote values and candidates that, at a minimum, they don't believe in, and at worst, find unforgivably offensive.  But is this such a bad thing?

On the one hand, I am sympathetic to the artists' objections.  I would hate to have someone I detest use my art to promote their agenda.  On the other hand, once an artist releases their works into the public arena and they become a mainstay of popular culture, they are in some sense no longer the exclusive domain of the artist.  They have merged with American culture and as long as there is no copyright violation and no false sense of endorsement, one could make an argument that each and every candidate has a right to use the song to further their own free speech by using it in their campaign.

For example, consider Bush's use of "Still the One" in 2004. In some sense, this was not just the use of a pop song.  This was a statement about the theme of Bush's re-election campaign -- that he is still the best candidate for the job.  To force him to use a different song forces him to change his theme and his message, however slightly.  Now, was this the worst outcome in the world? Surely not.  However, one could imagine all kinds of popular cultural allusions and references being useful to political candidates who want to spark interest among voters on key issues.  (See, e.g., the Hillary 1984 ad). To deprive candidates of those cultural hooks could potentially deprive us as a society of important political messages and themes that serve to engage and enlighten us as a populous.  How to balance these benefits versus the rights of an artist is challenging but important and should not be discarded lightly.

(Thanks to ALV for the link to the article)

Comments

[Riana]

As long as politicians need campaign songs, I don't suppose they'll be lining up to grant moral rights to musical artists as they did for visual works. :) Volokh blogged about this story too, and reached a similar conclusion to yours.

Maybe more politicians should commission campaign songs as works-for-hire! Though I don't suppose Jerry Brown has used his much...

[Barzelay]

What I get from your post is that you believe that as a part of an overriding free culture, candidates should get to use others' songs, provided they pay the minimal licensing fees, and even that this use promotes free culture. And to me, it's good that artists seeking to invoke moral rights in a situation like this must rely on norms-based intellectual property, rather than law-based. But does a goal of free culture mean we shouldn't use cultural norms (which Scholz is basically doing, for instance, by writing his letter and going public) to influence how works are used?

I have no problem with Scholz requesting that a campaign not use his song, but I guess what I'm saying is that it's bigger than just Scholz and his song.

The song was picked because it has a broader cultural meaning and is part of popular culture. Given that, it isn't totally up to the artist anymore, in my view, to determine who and where and when the song is playing as long as they are compensated appropriately. This is especially true when a candidate picks the song to symbolize a theme of their campaign, which to me is as much free expression as any campaign slogan.

So I guess what I'm saying is that while Scholz is welcome to object, perhaps he should think twice before doing so.