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Public Enemy Spat Puts New Twist on How Candidates Use Hit Music

March 5, 2020, 11:01 AM

Chuck D and Flavor Flav espoused the mantra “Fight the Power” for decades. Now they can’t agree what power needs fighting.

Flavor Flav’s firing from the rap group Public Enemy in a dispute over Chuck D’s performance at a rally for Democratic presidential candidate Bernie Sanders put a new twist on well-worn disputes over whether artists can prevent politicians from using their copyrighted works.

Bruce Springsteen famously objected to Ronald Reagan’s proposed use of “Born in the U.S.A.” in 1984, and such disputes have been a fixture of virtually every presidential campaign season since. Elton John, R.E.M., Tom Petty, the Rolling Stones and Aerosmith have also complained about such use of their music. The Public Enemy dispute stands apart, though, because of its intra-band nature and its focus on trademark and right of publicity laws, not on copyright.

Years of acrimony between the bandmates reached a crescendo after Flavor Flav sent a letter to Sanders’ campaign demanding it stop using Public Enemy’s name to market Chuck D’s appearance at a rally in Los Angeles. The letter called it “grossly misleading” because Flav wasn’t endorsing Sanders and “there is no Public Enemy without Flavor Flav.”

Chuck D, whose real name is Carlton Ridenhour, has owned the Public Enemy trademark since 2002. Attorneys say Flavor Flav, born William Drayton, likely couldn’t block its use. But he may have a right of publicity case, which lets individuals control commercial use of their own image and likeness, if his name or imagery invoking him—such as his iconic oversized-clock necklace—is used in commerce, trademark attorney Robert W. Zelnick of McDermott Will & Emery said.

Flavor Flav could also have a false endorsement claim under trademark law. Copyright attorney Jennifer Ko Craft of Dickinson Wright PLLC said that would be a more “amorphous” and weaker claim. But prolific musician endorsements of politicians—Cardi B and Jason Mraz backing Sanders, John Legend backing Elizabeth Warren, and Cher backing Joe Biden, among others —could strengthen a false endorsement case, intellectual property attorney Jeffrey H. Brown of Michael Best & Friedrich LLP said.

“If the public actually believes that the artist and songwriter are endorsing the candidate when they’re not, that may provide a basis to pursue a claim. It’s not necessarily a far fetched claim where many candidates have artists actively endorsing them,” Brown said, adding that may apply more to music introducing a candidate or campaign theme song than music merely playing before a candidate arrives.

Band contracts often contain provisions governing things like rights to a band name, a frequent cause of disputes as bands split and re-form. Brown said depending on Public Enemy’s contracts, Flav could potentially argue Chuck D defrauded the U.S. Trademark Office to get his trademarks, depending on the composition of the owner of earlier Public Enemy marks, Bring the Noise Inc.

Contracts could also moot either right of publicity or false endorsement claims, Zelnick said.

“Those theories haven’t been well-tested in court,” Zelnick said. “But it seems to me if there’s a deal in place for a public figure to use music in connection with a band, it’s hard to argue that it violates the right of publicity.”

Fighting the Power

Some political candidates claim rights to use music under blanket licenses they acquire from performing rights organizations (PROs), which nominally grant permission to publicly play any of millions of songs in their repertoire. Artists’ objections sometimes don’t matter: the Rolling Stones said they couldn’t legally stop Donald Trump from using “You Can’t Always Get What You Want,” and Trump also used Queen’s “We are the Champions” over guitarist Brian May’s objections.

Other times, politicians simply accede to artists and pull the music to avoid negative press.

John McCain did both during his 2008 presidential campaign. He backed down after complaints from ABBA and John Mellencamp while continuing to use music by Bon Jovi and the Foo Fighters. He was also sued by Jackson Browne over the singer’s hit “Running on Empty.” That copyright, false endorsement and right of publicity case eventually settled with a payment and apology from McCain and the Republican party.

The legal right to ignore artists’ will depends on the particular contract between the artist and the PRO, Craft said.

BMI, the largest PRO, has a separate license for political campaigns, from which songs can be removed on copyright owner request, for roughly a decade as more and more artists complained. ASCAP, the only one remotely close to BMI in size, says on its website that musicians can pull music as well. It didn’t respond to requests for clarifications on the boundaries.

If band members disagree, it further complicates the situation. Generally, only one copyright holder legally has to consent to a non-exclusive license to play a song, while in practice the PROs generally require all copyright shareholders to be on board, said John Simpson, an intellectual property law professor at American University.

In Public Enemy’s case, Flavor Flav isn’t one of composers of Public Enemy songs like “Fight the Power” and “Don’t Believe the Hype” listed on BMI’s database, which may explain why his letter focuses on other rights.

Avoiding Court

Traditional artist vs. politician cases rarely end up in court, Simpson said. Politicians usually stop using a song after an artist comes out against it, and often a publicized disavowal accomplishes artists’ ultimate goal even if law or public pressure fail to halt use. Artists who elect not to challenge a candidate’s use calculate that litigation aggravating fans who support the politician isn’t worth pursuing, he said.

But the Public Enemy stalwarts are used to locking horns in court. Flav sued Chuck D and others in 2017 over what he believed to be underpayment of a contractual revenue split. Chuck D and his co-defendants won summary judgment dismissing all claims in 2019.

The latest dispute’s venue so far has been Twitter, where Flav complained he was just trying to correct misleading marketing information, while Chuck D said Flav didn’t know “Bernie Sanders from Barry Sanders” and simply had long refused to play free shows.

“I think the whole purpose of the dissent is to show your fan base that ‘I’m not on board with this,’” Simpson said.

(Michael Bloomberg also sought the Democratic presidential nomination. He endorsed Joe Biden on March 4. Bloomberg Law is operated by entities controlled by Bloomberg.)

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editor responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Roger Yu at ryu@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

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