Politics, Music and Publicity: Tom Petty v. Michele Bachmann

Artist Tom Petty recently sent a cease-and-desist letter to Republican presidential candidate Michele Bachmann following the use of his song “American Girl” at Bachmann’s Iowa campaign rally. A 29-second clip was played again the following night at Bachmann’s stop in South Carolina. Tom Petty is not the first artist to vocalize such displeasure in having his music used by a particular politician; Bruce Springsteen, John Mellencamp, Heart, Van Halen, and Dave Grohl of the Foo Fighters have all rebuked politicians for using their songs in campaigns without permission.

In 2008, artist Jackson Browne went beyond a cease-and-desist letter, filing a complaint against John McCain and the Ohio Republican Party for the use of Browne’s song “Running on Empty” in a television commercial. Browne, a vocal Obama supporter, filed a complaint alleging copyright infringement, false endorsement, and violations of right of publicity. Browne alleged that at no time was a license for the song sought or granted, and as a result of the unauthorized use of the song, the public was confused into believing that Browne endorsed and was associated with McCain and the Republican Party. While the case was ultimately settled out of court, the allegations made, mainly copyright infringement and violations to rights of publicity, would likely be the same ones Petty will make in the event Michele Bachmann continues to use “American Girl”.

If Petty, or any other rock star, were to seek relief in Ohio, they would have to be sensitive to Ohio’s state-specific laws regarding right of publicity.

Ohio Revised Code § 2741 covers the claim of right of publicity and states that a person cannot use any aspect of an individual’s persona for a commercial purpose (including fundraising) during that individual’s lifetime and for a period following their death, unless that person obtains a written consent from the individual. In the event that written consent isn’t obtained, a private right of action may be brought by the individual to recover damages.

The goal of Ohio’s right of publicity statute is to protect the right of every person to control the commercial use of his or her identity. In Ohio, right of publicity is very similar to a federal claim of false endorsement. Like claims of false endorsement, the controlling issue in right of publicity claims is the likelihood of confusion. The court asks whether there is such an association with the product that it appears the individual endorses the product. A simple assertion that written consent was not granted, if left uncontested, may be sufficient to find a party liable under Ohio’s right of publicity statute.

In Tom Petty’s case, his demand for cessation was political in nature. In 2008 Petty permitted Democrat Hillary Clinton to use “American Girl” in her campaign, but did not extend the same allowance to George W. Bush in 2000 when the former president used Petty’s “I Won’t Back Down” in his presidential rallies. Petty sought to distance himself from Bush stating, “Any use made by you or your campaign creates, either intentionally or unintentionally, the impression that you and your campaign have been endorsed by Tom Petty, which is not true”. Such feelings seem to be echoed in Petty’s demand against Bachmann.

If Petty were to pursue such a right of publicity claim in Ohio, however, he faces some potential obstacles.

One exception that exists to an Ohio right of publicity claim, is when an individual’s persona is used in connection with any political campaign in compliance with Ohio campaign finance and election law.

The Browne v. McCain case, however, casts some uncertainty on how far that exception reaches. Like Ohio, California provides a right of publicity exception in the area of political campaigns. Though settlement occurred out of court, the California district court in the Browne case found the fact that the song was used in the context of a commercial for a political campaign, standing alone, was insufficient to bar the songwriter’s right of publicity claim.

Petty may also face a battle against a broader First Amendment argument. Even in the face of consumer confusion, some courts have permitted such use if it is outweighed by the public interest in free expression. Typically, courts look to see if a title of a work is artistically relevant to its content. If it is, a violation exists only if the “title explicitly [misled] as to the source or the content of the work”.

The fear of being tied to a political party or candidate may be a huge concern for a musician, particularly one who has vocalized support for the opposition. In Ohio relief can be sought through a right of publicity claim. Such a claim revolves around likelihood of confusion, and while some exceptions exist, the overreaching goal is to allow individuals like Petty control over their own identity.

Crumpton Law LLC and its attorneys practice small business law in Columbus, Ohio, and throughout the surrounding counties and cities of Franklin County, Delaware County, Union County, Madison County, Pickaway County, Fairfield County, Licking County, Dublin, Powell, Lewis Center, Worthington, Westerville, New Albany, Gahanna, Bexley, Reynoldsburg, Canal Winchester, Grove City, Hilliard and Upper Arlington.

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