Donald Trump accepted the Republican nomination on July 21 accompanied by the classic rock anthem "All Right Now" by "Free." One might ask if a song that is literally about a guy picking up a street walker for a one night stand is the most appropriate theme for this event. I could make an argument both ways. But this is not the editorial page.
What is more interesting to me is the now quadrennial spectacle of rock musicians complaining about presidential candidates using their songs without permission. As far back as 2008 Jackson Browne objected to John McCain's use of "Running on Empty." But Trump seems to lead the league in irritating the rock and roll world. I saw an article recently at alternet.org that listed six pretty high profile performers who've objected to Trump using their songs. The list includes the Rolling Stones ("Start Me Up, "You Can't Always Get What You Want" which was apparently played at the introduction of Mike Pence as Trump's VP (I am not making that up) and "Sympathy for the Devil"); Adele ("Rolling in the Deep" and "Skyfall"); Twisted Sister ("We're Not Gonna Take It"); Neil Young ("Rockin' in the Free World"); Steven Tyler ("Dream On") and R.E.M. ("It's the End of the World as We Know It").
There are actually a few layers to this issue. The easiest may be the copyright question. That is kind of a black and white issue the candidate either has a license to use the song or not. ASCAP, the industry licensing service, offers a "public performance license." Assuming the candidate pays for that, there shouldn't be a copyright issue. A license is a license.
But as ASCAP itself notes in a recent press release, getting the right license may not end the issue. Artists have other legal avenues to pursue if they object to the use of the song. One is the right of publicity. While the right of publicity typically prohibits the unauthorized use of someone's "image or likeness," it's possible the song is so identified with an artist that the use of the song is equivalent to the use of the image.
The Lanham Act prohibits the misuse or dilution of a trademark. Again, the use of a song so associated with a band whose name is trademarked could give rise to a claim.
Finally, there are laws that prohibit a "false endorsement." Again, if someone hears a Stones song at a Trump rally, they may assume that the Stones are on the Trump band wagon. And to those readers who think no one in possession of their faculties would endorse Trump, remember, we're talking about Keith Richards here.
This whole thing fascinates me. On one hand, if someone wants to use a song, and is willing to pay the license fee, the free market side of me thinks they should be able to do it. On the other hand, I can see artists feeling protective of their work. If the artists prevail given the number of artists who have objected -- that could be problematic for Trump. Unless Scott Baio learns how to play the guitar.