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Why Don't Whiny Rock Stars Just Sue John McCain?

Thu., Oct. 16, 2008 9:01 AM PDT by Leslie Gornstein

STAN HONDA/AFP/Getty Images

If I hear one more band complain about the Republicans using their songs in the presidential campaign, I'll scream. Why don't these singers just shut up and sue?
—Sue

Because they can't. Survivor, Heart, Bon Jovi, Van Halen, John Mellencamp—all have had their songs played at John McCain rallies without their personal approval. But according to lawyers I've talked to, those artists have little to no recourse, except to hire publicists to issue huffy statements.

If they were smart, they'd squeeze themselves back into their strategically ripped acid-wash jeans and take it to the streets: Oh, the Indignity '08 tour. I would totally pay for that T-shirt.

The reason they can't go to court? Well...

The songs by the above artists were mostly played in large campaign venues, like convention centers. In those cases, the song licenses are paid by the venue, not the campaign. Venues pay a yearly fee to a licensing agency that represents the artists. Pay the fee, and get blanket advance clearance to play scads of songs.

But if you really wish that the McCain campaign would suffer some sort of comeuppance for this, well, there is one musician who has a strong shot at a court victory: Jackson Browne.

Browne is suing McCain for using his song "Running on Empty," but here's the distinction: The candidate used the song in a commercial, not at a rally. And there are stricter legal rules in place for that.

"He has said it's a copyright infringement in using the song," meaning the words and notes, says entertainment attorney Randy Friedberg, who is not handling the Browne case. "And he is also suing over use of that specific recording of the song." Browne has also argued that the song's use falsely creates a perception that he endorses a McCain presidency, an actionable offense under something called the Lanham Act.

"Mr. Browne ... first heard about the use of his song in the McCain commercial from fans who were shocked," his attorney, Larry Iser, explains to me. "As far as the lawsuit is concerned, the defendants have now been served with the complaint and their responses are due at the end of October. As they say in the music business, stay tuned!"

So why are these other artists even opening their mouths?

"They probably want to go public they are not McCain supporters," Friedberg posits.

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