How can the band Heart legally stop McCain/Palin from using "Barracuda"?

September 6, 2008 10:30 AM

The band Heart sent a cease and desist letter to the McCain/Palin campaign for using the song "Barracuda". What is the legal basis for that?

I'm a musician and familiar with the basics of entertainment law. It seems if the RNC has a license from ASCAP (that in turn pays publishers, and in this case Ann and Nancy Wilson) to play music in their catalog, they can play pretty much whatever they want.

Clubs generally have to buy ASCAP/BMI licenses if they are playing covered songs in their establishments (whether on a jukebox or a band playing live). I would think similar rules apply for playing a song at a convention.

I guess maybe the political nature of the event could change things. It could imply that Heart endorses McCain/Palin. Perhaps it could be argued that the RNC is using Heart's "name and likeness".

Still, I kind of get the feeling it's mostly about the Wilson sisters letting the world now they aren't happy about this, and hope the McCain campaign chooses something else, even if there is no legal recourse.

In the link above, some people try to answer that question, but it's drowned out in partisan bickering. While I'm (way) sympathetic to the Wilson sisters on this one, I just wonder that the legal basis is.

Previously on ask MeFi: "How does Rush Limbaugh get to use the Pretenders as his theme music?"

posted by kongg to law & government (12 comments total)

Slates Explainer has an answer.
posted by dawson at 10:39 AM on September 6, 2008 [1 favorite]

Ah heck. Googlin' around I may have answered my own question:

"Political campaigns often take the position that they only need a performance license from BMI, ASCAP or SESAC to play a song at a live event...Campaigns risk bad publicity if they use a song without the artist's permission because the act may complain publicly."

Other artists pissed at McCain/Palin: Jackson Browne, Van Halen, Mellencamp.

On the flipside, Sam of Sam & Dave is pissed at Obama/Biden.
posted by kongg at 10:42 AM on September 6, 2008

Thanks, Dawson!
posted by kongg at 10:45 AM on September 6, 2008

no problem kongg, oddly enough I'd just read that piece this morning.
posted by dawson at 10:51 AM on September 6, 2008

I think the Wilsons' main purpose in raising a stink is to make sure that their fans and fellows know that they don't endorse the McCain/Palin ticket. Irrespective of what they might feel personally about politics, that's good business because the majority of their fan base is left-leaning.
posted by Class Goat at 12:11 PM on September 6, 2008

On the flipside, Sam of Sam & Dave is pissed at Obama/Biden.

This is interesting, because the publisher of this song, Almo/Irving Music, is also the publisher who stopped Republican Bob Dole from using another Sam & Dave song, "I'm A Soul Man" (as "I'm A Dole Man.") I only vaguely remember the incident (I hadn't been in America long at that point), but apparently Sam Moore (of Sam & Dave) gave Dole "permission" to use it.

The problem is, Sam was hardly in a position to do so; he owned neither the song recording nor the publishing. In fact, neither "I'm A Soul Man" nor "Hold On, I'm Coming" (the song Sam is upset at the Obama campaign for using) was written by Sam and/or Dave. Both songs are Isaac Hayes / David Porter compositions. The publishing company which controls these compositions is owned by two very politcally liberal people, Jerry Moss and Herb Alpert, who have some right to control the use of the compositions they own if they are used in ways that can be seen as "commercial," or if the song was at risk for losing its integrity (in the one case, by creating a connection between Bob Dole and the lyric by changing "soul" to "Dole.")

With Sam Moore and "Hold On, I'm Coming," the situation is pretty different than with Jackson Browne, Van Halen, John Cougar Mellencamp, and Heart, if only because those latter-named artists' songs really are "theirs," in that they wrote them themselves and own a stake in their publishing. Sam's appropriation of a song which is not his (and which goes against the wishes of its owners, writers and the politic tendencies of his now-deceased partner) is just lame.
posted by Dee Xtrovert at 12:24 PM on September 6, 2008 [2 favorites]

"Irrespective of what they might feel personally about politics, that's good business because the majority of their fan base is left-leaning."....not that there's anything wrong with that.
posted by giveandgo at 3:30 PM on September 6, 2008

I'm really never thought of "Heart" and "fan base" as connected 'till now.
posted by dawson at 3:41 PM on September 6, 2008

*I've* (good grief!)
posted by dawson at 3:43 PM on September 6, 2008

"Irrespective of what they might feel personally about politics..."

Irrespective...? Here's the quote from Nancy & Ann Wilson of Heart:

"Sarah Palin's views and values in NO WAY represent us as American women. We ask that our song 'Barracuda' no longer be used to promote her image. The song 'Barracuda' was written in the late 70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The 'barracuda' represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there's irony in Republican strategists' choice to make use of it there." [SOURCE]
posted by 2oh1 at 8:58 PM on September 6, 2008

2oh1, the point I was trying to make is that no matter what they feel inside, that is what they would announce because anything else would be career suicide. (If it happens to agree with what they feel, all the better of course.)

No one wants to be the next Dixie Chicks. (Who, ironically, got commercially punished for the exact opposite viewpoint, which nonetheless was equally unpopular with their fanbase.)
posted by Class Goat at 9:51 PM on September 6, 2008

I don't think that "fanbase" works the way you think it does, Class Goat. The Dixie Chicks were rejected for an overt act. I don't think anyone would actually notice if Heart just let it go (and I'm not being snarky). Depends on how iconic the media attention made it, I suppose. But calling it "career suicide" seems a bit much, especially when there are obviously plenty of Republican fans of their music.

A more direct comparison might be if a band with a liberal-leaning fanbase decided to record a song or video supporting McCain. Even then, some would go with their idols and some wouldn't. For instance, Dave Sim's using his Cerebus comic book to promote his decidedly unique sociopolitical views didn't prevent all his fans from following him to issue 300. There was a lot of tut-tutting in the comics media but generally it was more of the tenor "he's lost me" than any fervor to mount a boycott or a comic-book burning.

In other words, I'm not sure that the politics of distraction are as prevalent on both sides of the aisle.
posted by dhartung at 4:56 PM on September 7, 2008