As the most fractious US election in living memory enters its final furlongs, Bono and Springsteen are the latest music stars to launch broadsides at the Republican candidate. But he’s far from alone. Barbara Streisand lampooned Trump in performance and in print while his rhetoric has attracted condemnation from Latino artists and a protest song from rapper YG.

However, this time around the musical commentary is perhaps more vociferous than in previous elections and his divisiveness has run up against a wide array of musicians calling for a halt to his use of the pop and rock tunes that are a staple of campaigning.

REM set the tone during the primaries, slamming Trump’s “moronic charade of a campaign” for playing “It’s the End of the World As We Know It” at a rally. Other demurrals came from Queen, Elton John, the Rolling Stones and more. Being dead, it seems, is also no hindrance to cross-purposes with the Republican nominee. The estates of George Harrison and Luciano Pavarroti described the use of their music as, respectively, “offensive” and “entirely incompatible with the world view offered by the candidate Donald Trump”.

Trump is also the latest in a long line of candidates whose campaign has drawn on the soundtrack to Les Misérables, despite its composers never endorsing political uses of their work.

Electioneering

There’s a longstanding association between popular music and political campaigns in the US. Campaign songs have been in play from George Washington’s time onwards, gaining increasing prominence in the 20th century via mass media celebrity endorsements. The trend towards using pre-existing recordings, rather than specially written songs or familiar tunes with new lyrics, was given a fillip in the 1970s when the 26th Amendment reduced the voting age to 18 and it was seen as a means of attracting younger voters. This has sometimes been successful, where an agreement is reached with artists, as with Bill Clinton’s use of Fleetwood Mac’s “Don’t Stop”. But more often it leads to the kinds of disavowal piled up around Trump’s campaign.

Rockers and pop stars are often more liberal leaning than their more conservative country counterparts, so the bulk of these have been against Republicans. But there have also been cases of artists not welcoming any political associations. Some have pulled the rug from under the Democrats, as Sam Moore did over Barack Obama’s use of “Hold on I’m Coming”. But as elections get into high gear campaigners looking towards the wider populace seek out classics and big hits with the widest appeal, pushing them towards the aesthetic centre and away from genres that appeal primarily to their political base.

The amorphously aspirational (or angry) tone of many rock and pop songs makes them seem, at first glance – without examination of the artist’s political orientation – apt for either side of a political divide. But this can lead to mismatches. In 1984, Bruce Springsteen disowned the Reagan campaign’s use of “Born in the USA” – somewhat misguided in the first place since the lyrics of its pumping chorus are bitterly ironic anyway, as the song depicts the poor treatment of Vietnam veterans.

The proliferation of complaints in recent years raises the question of what musicians can actually do to stop their songs appearing in campaigns.

Much depends on the context. Many objections refer to rallies and live events. There isn’t much legal comeback here though if the venues hold the requisite licenses for public use of recordings from the copyright collection agencies ASCAP and BMI. In many of these cases, cease and desist letters or similar warning shots are mostly a matter of making the artists’ disapproval and distance from the campaign a matter of public record. While legal protection in such instances isn’t cast-iron, it’s generally not worth the negative publicity for candidates to carry on once an artist has told them to stop. When Tom Petty objected to George W Bush using “I Won’t Back Down”, for instance, Bush did just that.

There’s more scope for blocking if a song is used in an advert or promotional material on the internet, where a license is required and the campaign needs permissions from the song’s publisher and perhaps the artist’s record label. Depending on their deals, artists may have some leverage here. Certainly a failure to obtain permission is a breach of copyright and subject to legal recourse, as John McCain found out when Jackson Browne sued over the appearance of his song “Running on Empty” in a campaign advert.

Fair use?

McCain’s team tried to claim the “fair use” exemption to copyright on the grounds that its use of the song was minimal, not for commercial purposes and unlikely to damage Browne’s financial interests. But Browne had another strand to his case that could be applied more widely, even to campaign rallies – potential reputational damage. The “moral rights” of European copyright provision that offer protection beyond financial concerns aren’t particularly robust in US federal law, but Browne appealed to the Lanham Act, a piece of trademark law that protects brands from misrepresentation or confusion arising in consumers due to misleading use. A similar piece of intellectual property legislation in some states, also cited by Browne, is the Right of Publicity, protecting the property aspects of a person’s voice and image.

Ultimately, McCain conceded and settled, so although Browne was victorious, the legal minutiae weren’t tested in court. But the case illustrated both a potential opening for artists and peril for politicians willing to push the point. While other priorities on the campaign trail and fear of poor public relations tend to militate against this, the need for popular background music remains.

If politics – as Bill Clinton strategist Paul Begala said – is “showbusiness for ugly people”, politicians are rarely shy of deploying the work of more straightforward entertainers to burnish their appeal. And as Trump appears impetuous in the face of legal challenges and contemptuous of bad publicity, the familiar sound of musicians crying foul looks likely to continue apace.

Adam Behr, Lecturer in Popular and Contemporary Music, Newcastle University

This article was originally published on The Conversation. Read the original article.

Cover image courtesy of Justin Lane/EPA.

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