Will McCain’s Heart Stop?

Whether the campaign needs permission to play “Barracuda.’

Read our complete coverage of the GOP Convention and Sarah Palin.

Ann and Nancy Wilson, the frontwomen of the rock band Heart, are demanding that the McCain campaign stop using their 1977 song “Barracuda” at political rallies after the song was played in honor of vice-presidential nominee Sarah Palin on both Wednesday and Thursday nights. Does the McCain campaign have to honor the Wilsons’ wishes?

Not if the campaign has the correct license. Like thousands of other songs, “Barracuda” is distributed by the American Society of Composers, Authors, and Publishers, meaning that any entity that is licensed with ASCAP can play a song without getting the artist’s explicit permission. This license can be held by a venue, like a club or a sports arena, and apply to all events that take place there. In this case, the Xcel Energy Center in St. Paul, Minn., would be the holder, but a representative tells the Explainer that the venue’s ASCAP license applies only to sporting events for the Minnesota Wild and the Minnesota Swarm, the professional hockey and lacrosse teams, respectively; otherwise, it’s up to the people who use the premises to get their own. A spokesperson for the Republican Convention said the event did have an ASCAP license separate from the one for sports.

Assuming the licenses were all in order, the Wilson sisters probably don’t have much legal recourse. But it would be a much different story if the campaign had used the song in an ad or a promotional video. While an ASCAP license covers the right to perform a song, you need a separate “synchronization license” from the publisher to put the song in an ad. Some artists ask for stipulations in their contracts with publishers that prevent their songs from being used for political advertisements or any other causes they find objectionable. (Neil Diamond, for example, is known to be very reluctant to license his songs for programming that is even vaguely political.)

Last month, singer-songwriter Jackson Browne sued the McCain campaign, the Republican National Committee, and the Ohio Republican Party over the use of his song “Running on Empty” in an ad without obtaining a sync license. Had the McCain campaign used “Barracuda” in a video montage about Palin, they would have been required to get this permission, which the Wilson sisters presumably would have rejected—assuming their publisher asked them.

It’s very common for musicians to object to the use of their material. The McCain campaign has already run afoul of several other artists this year, including John Mellencamp and Van Halen. In both those cases, the artists were objecting to the use of their songs at rallies, where an ASCAP license would apply. The McCain campaign agreed to stop playing Mellencamp songs voluntarily. The issue also frequently crops up with Christian groups that do not wish their material to be used at events they find objectionable.

If the campaign chooses to continue playing “Barracuda,” and so much so that it becomes associated with Palin, the Wilson sisters could have a legal claim. They might argue a violation of their “right to publicity,” which protects a person from having her identity used for marketing purposes. Such protections vary by state and tend to apply to commercial products, not political messages.

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Explainer thanks Gordon P. Firemark; Steve Gordon; Lawrence Iser; Kathy O’Connor of the Xcel Energy Center; and Barry Shrum of Harris, Martin, Jones, Shrum, Bradford & Wommack.