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Tom Petty vs. Michele Bachmann

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Guitar and American Flag

Image by grtaylor2 on Flickr

When Republican Michele Bachmann announced her candidacy for US president on June 27, she used Tom Petty’s “American Girl” to rally her supporters. And Petty didn’t like it. The musician’s lawyers were reportedly working on a cease and desist before the day was out.

Bachmann shouldn’t have been surprised. When George W. Bush tried to use Petty’s “I Won’t Back Down” during his 2000 election bid, he was similarly rebuffed. Bush voluntarily gave up use of the song after Petty’s complaint.

Can an artist legally force a politician to stop using his or her song?

Petty isn’t the only artist who has served a cease and desist (or even sued) over a candidate’s misappropriation of a song. Whether or not the candidates are actually infringing on the artists’ intellectual property rights is still a question, though.

In 2008, John McCain’s campaign got complaints from a number of artists, including Van Halen, Heart, Jackson Browne*, John Mellencamp, and Boni Jovi, for using their material without their approval. The campaign eventually stopped using most of the songs voluntarily, even though it claimed it had the right to play them due to a licensing agreement with performance rights organization ASCAP (American Society of Composers, Authors, and Publishers).

When events or venues license music through a performance rights organization like ASCAP, the licensor can play a song without the artist’s explicit permission. But that doesn’t mean the artists will appreciate being associated with a candidate who has licensed his or her music. In most cases like this, the artist and the accused politician have decidedly different political views, and that may be enough to stop this sort of use. As Eriq Gardner notes in the Hollywood Reporter, the artists could still claim false endorsement:

A dispute over music played at a campaign event, like the developing Petty vs. Bachmann fued, is an entirely new legal debate. Arguably, so long as a campaign purchases a license from the performance rights organization ASCAP, it should stand on solid ground. On the other hand, Petty could still claim that such music constituted an implied endorsement of the Republican candidate.

[Editor's note: The distinction between a campaign purchasing an ASCAP license and the question of "false endorsement" is one between copyright and trademark law. Licensing is a copyright issue; endorsement is a trademark issue.]

It’s unclear whether or not Bachmann will continue to use “American Girl” (she has used it at least once since the cease and desist was issued) or whether Petty will pursue further action if she doesn’t. What is clear is that we should probably get used to arguments like these as the election ramps up: Katrina and The Waves have also issued a statement saying they don’t approve of the use of their song “Walkin’ On Sunshine” at Bachmann’s rallies.

*Of the offended artists, Jackson Browne was the only one to actually bring a lawsuit against the campaign. To be fair, Browne’s music was used in an ad for the campaign, not just at rallies. The case settled in 2010 for an undisclosed sum and an apology from McCain.

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