More Musicians Object to Uses of their Music in Political Campaigns

Wednesday, November 18, 2015 - 7:30pm
right of publicity claim versus Huckabee for eye of tiger copyright

Today, Rude Music filed a complaint in a federal district court in Illinois for the use of the song “Eye of the Tiger” by Presidential candidate Mike Huckabee. The song by the band Survivor was the theme song in the movie Rocky III which topped the charts at the time.  Huckabee played the song at a rally in support of Kim Davis, the controversial clerk from Kentucky who refused to issue marriage licenses to same-sex couples.  The complaint thus far only includes a claim under copyright law, but similar lawsuits have often included false endorsement and right of publicity claims. 

This comes on the heels of yesterday’s filing in a federal district court in California of a similar suit brought by Roger Nichols and Three Eagles Music against Club for Growth Action, a conservative PAC. Club for Growth used the song that Nichols had composed in an attack ad against Russ Feingold who is running for a Senate seat. The song, “Times of Your Life,” was made famous by Paul Anka. In addition to a copyright claim, Nichols’ complaint includes a claim for false endorsement. Although no right of publicity claim is pled, it would come as no surprise for it to be added in an amended complaint either by Nichols or Anka, should Anka wish to inject himself into the litigation. 

Similar lawsuits often have included right of publicity claims in addition to false endorsement and copyright claims. Jackson Browne, for example, included all three claims against then presidential candidate John McCain for using one of Browne’s songs.  Browne’s complaint survived Anti-SLAPP motions.

Steven Tyler also has recently complained about Donald Trump using his music and has sent several cease and desist letters. Such claims appear to be on the rise as musicians who are carefully managing their brands do not want to be associated with politicians or political views with which they disagree. The success of some of these claims provides further evidence that courts are not limiting the right of publicity to commercial advertising and are even willing to extend it to apply in the context of political speech. Regardless of legality, I can’t understand why any politician would want the bad publicity of a musician objecting to the candidate’s use and saying how terrible the politician and his policies are.

Complaint, Rude Music, Inc. v. Huckabee for President, Inc. (Filed N.D. Cal. Nov. 18, 2015)

Complaint, Nichols v. Club for Growth Action (Filed C.D. Cal. Nov. 17, 2015)