Presidential Soundtracks: “Walk Up” Tracks and the Power of Campaign Music

On Wednesday, January 20, 2021, Joseph Biden will stand on the steps of the Capitol Building in Washington, D.C., place his hand on the bible, and will be officially sworn in as the 46th President of the United States of America. The world will be tuned in to see Biden and Kamala Harris assume their new roles after a very contentious election cycle.

This article isn’t about politics or even about the inauguration. Rather, it’s about music, and the role music has played for politicians during their campaigns and will continue to play in the of politicians keen to bond with their constituents.

Music has long been an important component of a politician’s image. Think Clinton with his saxophone on the Arsenio Hall show, and Obama “Slow Jams the News” on the Tonight Show. Truly iconic moments that connected these leaders with their constituents in a way that only music can.

As music has become an important component of a candidate’s image, politicians and artists (and labels) find themselves on the horns of a dilemma. First, artists have little say over who can use their music, as they rarely own the rights themselves. As a result, artists are sometimes associated with politicians whose politics they abhor. (Trump chose the Village People’s “Macho Man” as a campaign song, for example). Next, politicians often play songs at their rally’s without bothering to get the proper licenses or clearing the song’s use with the artists or the publishers/labels. Some will honor cease and desist letters; others are fined, or simply ignore the pleas of the artists and labels. The labels, who often wish to remain apolitical for obvious reasons, find themselves torn between the artists they support and politicians who can have a positive (or negative) impact on their bottom line.

According to USA Today, campaigns can obtain blanket licenses from performing rights organizations such as the American Society of Composers, Authors, and Publishers and Broadcast Music, Inc. While artists may not always have any legal recourse, public attacks on the politicians using their music – Neil Young’s onstage denunciation of Trump over the latter’s legally cleared use of “Rockin’ in the Free World” as an example– can lead to the song being dropped.

Politician’s Signature Songs

Of late, “Walk Up” songs have become an integral part of the political landscape. Similar to a baseball player coming to bat or the drama-filled announcement of the line-up at a basketball game, this new trend has made it’s way into popular culture and sometimes helps catapult the candidate into public life.

Beginning with political rallies in their hometowns, candidates carefully select the songs that they use when they address their audience, because they understand the impact that the association with a popular song (and artist) can have.

Vice President-Elect Kamala Harris’ first rally in Oakland, California featured “Work That” by Mary J. Blige. If you know anything about Ms. Blige’s history and oeuvre, Ms. Harris’ selection was perfect—both for the crowd and for the occasion.

The same can be said for Elizabeth Warren. She chose country queen Dolly Parton’s anthem for working women: “9 to 5.” Again. Makes sense.

Brooklyn’s own Bernie Sanders kicked off a rally in Brooklyn, blasting (Brooklyn) born Jay Z’s “Brooklyn Go Hard.” Try saying that fast three times.

Finally, President-elect Joe Biden chose “We Take Care of our Own” by none other than Bruce Springsteen.

In each of these examples, the artists themselves welcomed the association with the politician.

However as noted earlier, all artists don’t welcome the association. Sometimes, politicians will use a song without the artists’ permission, leading to Twitter feuds, fines and cease and desist letters.

Bruce Springsteen famously disapproved of Ronald Reagan using “Born in the U.S.A.” Following a cease and desist letter, the licensing company pulled Aerosmith’s songs from the Trump campaign’s blanket license, forcing their removal of Aerosmith’s “Dream On.”

Barracuda was one of Heart’s biggest hits and Republican vice presidential candidate Sarah Palin, whose nickname was “Sarah Barracuda” in high school, used the song at campaign rallies in 2008. She claimed she had the right to use it because she had a blanket license from ASCAP.

Mike Huckabee’s campaign was forced to pay a $25,000 settlement for unlicensed use of “Eye of the Tiger.” Newt Gingrich also paid a settlement over use of the song in 2012.

It’s not just the Republications being asked to stand down. In 2008, Sam Moore of Sam & Dave asked Obama to refrain from playing his “Hold on, I’m Coming,” for fear it would look like the singer had endorsed the candidate. The Obama campaign agreed to stop.

Thankfully, we will get a reprieve from political campaigns (and rallies) for a while. In the meantime, lawyers, labels, publishers and artists continue to struggle with finding a solution that works for all.

YouTube – Friend or Foe?

I’m just going to dive into the current biggest controversy in the music business.  Does YouTube help the music business or does it hurt?  Is it good for artists but not for labels?  Or vice versa?  If it hurts, how much does it hurt and how could it stop hurting and start helping?

First, it’s important to understand how the whole YouTube thing works.  Originally, YouTube was the first significant video sharing site.  It enabled all of us to post videos of our dogs and cats and kids and share them with everyone.  It was social and it was easy.  It also allowed us to share silly videos of us lip-synching to Madonna (was that just me??) and to upload videos of our favorite artists playing live.  Eventually, people began posting actual music videos found online or recorded from the screen, recordings of live shows and made music videos using other people’s music.  And all this activity was happening as CD sales were tanking and music piracy was flourishing.  Meanwhile, in large part because of all these videos (arguably videos with music drove considerable traffic and attention)  Google acquired YouTube  for a number with lots of zeros behind it.   But this all sounds like piracy and copyright violations you yell!  It is BUT… YouTube never obtained a license for any music broadcast on its platform in videos because the Digital Millennium Copyright Act gave platforms like YouTube that enabled people to share content using the platform technology, but for which the platform provided no curation or oversight, A FREE PASS.  Really a defense to infringement.  The only rights YouTube needed were from the people uploading content – and YouTube simply asked them for a license and to guarantee they (the uploaders) had the right to upload the content.  YouTube’s only additional obligation was to take down content if/when they were notified by the content owner that the content was infringing.  And in doing these two things, YouTube (and its parent Google) were protected and all the infringement claims were effectively blocked by their Wonder Woman like shield in the form of the DMCA.

However, in a bid to stop spending legal fees and return to the business of making money, YouTube and the labels and publishers and the PRO’s entered into various agreements to do business together.  YouTube created a content identification system that matches music in a video to an artist/label/publisher using a database of music “fingerprints.”  Then the owner of the music can elect to run ads around video containing the music and YouTube splits the ad revenue with the labels and publishers.  And if an artist or writer does not want their music in videos on YouTube, they can elect (or their label/publisher can elect) to just have the video taken down (although that becomes a bit of whack-a-mole because there is no mechanism for take-down and stay-down).   This has created an uneasy and in some cases angry detente in the marketplace between all the music-related parties.  The source of the anger and frustration of the labels and publishers is the DMCA.  Because the DMCA (as interpreted by many courts) gives YouTube the benefit of a shield to the lawsuits, the labels and publishers have limited bargaining power.   And that, in turn, gives YouTube an advantage over other streaming services (like Spotify and Soundcloud) who do not have the benefit of the DMCA defense.

YouTube maintains that proper use of their tools enables artists to connect with their fans, build their brand, enables their fans to engage with the music by making their own music videos to their favorite songs – all for free.  And with the content ID system, the labels and publishers can also earn money by putting ads around the videos.  And in fact  there have been some big success stories of new labels and artists using YouTube to build their fanbase.  Spinnin’ Records, recently acquired by Warner Music for over $100 million, built their business using YouTube as the primary marketing platform for their mostly EDM roster.  Once an artist found its fanbase, the artists, with the help of Spinnin’ toured and sold merchandise and generated significant income.  YouTube did provide the artists and label income as well – but it’s important use was as a marketing/publicity tool.

BUT, YouTube is not a good marketing fit for every artist/writer.  And every artist/writer does not want to let others make music videos using their music.  Furthermore, putting music in videos is synchronization licensing – licensing that has been and continues to be a great source of income for artists.  Legally, for a piece of music to be used in a video, game, ad, or behind other moving images, the person or company creating the video must obtain the right to use the music before that video can be broadcast anywhere.  So if an independent filmmaker wants to use music in their film, they need to ask permission and negotiate a deal and pay the owners of that music- both the composition and the recording.  On YouTube, much of the music used in the videos has not been properly licensed by the creator.  YouTube is the distributor not the creator.  So the income the artist/writers earn from YouTube is distribution income, not sync licensing income.  This sync licensing income is just lost.

The other item that is lost in the YouTube system is an artist/writers right to say they do not want their music used in any way that is not approved in advance.  YouTube has effectively removed an artist’s right to dictate how their art is used.  Philosophically, some people say this is actually beneficial for society – new art is often created on the back of existing art and this progression allows for the development and progression of the music industry as a whole.  Perhaps… but that ignores the laws on intellectual property – laws that protect companies like YouTube from other people stealing and re-purposing their technology without prior approval.  And laws that allow artists (and their labels and publishers) to have control over their business and their image – a right accorded other businesses.  So why should certain types of intellectual property be protected and others not?  And who is the arbiter?  And why shouldn’t an artist or label be able to decide who they want to do business with and how to share their intellectual property and how to be compensated for allowing others to use it?

Lots of questions with no easy answers.  But certainly ignoring the rights and business needs of artists, writers, labels and publishers cannot be the answer.  Next up – possible solutions.

 

Artists and Developers – the Disconnect

SongLily is both my business and my passion.  And yet I often question whether the business of music was the right choice.  While I believe most people agree that music is a significant part of their lives, I also believe there is an on-going struggle to bridge the gap between the importance people place on music in their lives, and the economics of music.  Particularly the economic value of popular music.

When we started SongLily, we believed that a lot of the reason companies (particularly startups) pirated popular music for use in their products tied directly to the difficulty in licensing music- particularly sync licensing (why sync licensing is hard is worthy of a blog post all on its own).   So we thought if we could just make it easy to license music for use in products (games and apps to start) developers would be falling all over themselves to license the music.  And like most startup founders, we were only partially right.

I met with a guy who created a mobile app that was in the social video sharing space.  He wanted to give his users song choices to soundtrack their videos.  We discussed sync licensing and it’s challenges and the SongLily solution (which eliminated most of those challenges).  He said he didn’t really have budget to license the music but he thought that the publicity it would give the artists would be valuable enough.  I took a deep breathe and explained that his app that had not yet launched and had no investor support and therefore would not add significant publicity to famous popular artists to the extent they would exchange that for money.  But that there were plenty of terrific indie artists on SongLily that were charging much less money and would love the publicity.  I also suggested there were artist who were willing to license their work under creative commons licenses – designed to value publicity and spreading the art over money.  The developer, with a straight face, told me that he really needed to use popular music because people would not be inclined to download his app if it contained music by artists they were not familiar with.   Huh.  Not sure how that makes the publicity a good deal for the artists, but it certainly (at least in his head) was a make or break for his app.  So why the disconnect?

If music is perceived to be a driver of installs of an app or game, then how is the value of music not clear?  Music generates income only from its use.  It is no longer purchased in CD or vinyl format in quantities sufficient to sustain most artists.  Like any developer, an artist may choose to give away some or all of their music for marketing, to find and develop a fan base, to reward their fan base.  But the artist gets to choose how giving away music benefits their business.  Like a developer chooses if they sell an app, give it away, monetize through ads or other products, an artist is also running a business and choosing their business and monetizing path.   But the disconnect is something we at SongLily spend a lot of time thinking about and we haven’t yet come up with a good answer.