The Art Of Finding A Theme Song For Your Presidential Campaign While Not Getting Sued

One was a famously straight-laced politician who wore his suits well-starched and his hair parted neatly to the side. The other was a scruffy icon of the turn-of-the-millennium rap-rock fad, whose colorful public life included a string of legal troubles and a short-lived marriage to Pamela Anderson.

But for a few months in 2012, Mitt Romney and Kid Rock were inexorably linked in the public consciousness, as they joined forces to promote the former’s presidential candidacy through the latter’s 2010 heartland anthem, “Born Free.”

It was one of the more interesting products of the nexus between presidential politics and popular music, which has been a campaign trail fixture ever since the election of 1840. That year, backers of William Henry Harrison rallied to the tune of a supporter-penned ditty called “Tippecanoe and Tyler Too.”

Each campaign operates by its own playbook when settling on a theme song and -- perhaps more importantly -- deciding whether and how to acquire the legal rights to play it in public.

The Romney/Kid Rock pairing was one of the few that received the artist's blessing in advance, and had its roots in an offhand conversation that took place at a breakfast buffet in a Courtyard by Marriott somewhere in Iowa.

It was there in the fall of 2011 that Will Ritter, the Romney campaign’s director of operations, struck up a conversation with Joe Funk, a member of the candidate’s security detail.

Funk offered a suggestion that was outside his typical purview of ensuring the former Massachusetts governor’s physical safety. Romney, he told Ritter, should consider using “Born Free” as the soundtrack for his campaign.

“I’d been a Kid Rock fan for a while,” Ritter recalled. “So I looked it up, and -- to my surprise -- the song was upbeat. And the lyrics were not only appropriate, but downright inspirational.”

It also didn’t hurt that Kid Rock’s own roots were in Romney’s birth state of Michigan. And best of all, the singer was a Republican, an uncommon political affiliation for well-known rock stars.

Still, the fastidious Romney campaign wanted to get Kid Rock's permission before proceeding -- a rare courtesy that many other White House hopefuls have ignored when choosing their own campaign theme songs -- so they contacted the artist's manager to inquire about whether he’d sign off on the idea.

Kid Rock asked for a meeting in Detroit with the candidate, a request that Romney happily obliged, and what was perhaps the oddest couple of the 2012 campaign was born.

The singer would go on to endorse Romney formally, perform at several rallies and even take on a starring role at the 2012 Republican National Convention.

Previous presidential candidates have similarly fostered close public relationships with musicians whose work they appropriated to get their message across.

Cigar-chomping country crooner Hank Williams Jr. and Lee Greenwood of “God Bless The USA" fame were two regular fixtures on the trail with Sen. John McCain and former Alaska Gov. Sarah Palin in 2008, flying around the country to perform at events for the Republican ticket.

And four years after the instantly recognizable opening riff of “Signed, Sealed, Delivered” played candidate Barack Obama off the stage on a high note at massive rallies around the country, Stevie Wonder recorded a less memorable tune to help the incumbent Democratic president get out the vote for his 2012 re-election bid.

But in recent years, public conflicts and legal disputes have been at least as common as candidate/crooner partnerships.

Tom Petty alone has twice issued cease-and-desist letters to GOP White House contenders over their use of his songs -- first against George W. Bush’s 2000 campaign for using “I Won’t Back Down” and then against Michele Bachmann in her 2012 run for using “American Girl.”

In the end, Bush did, in fact, back down, and Bachmann did, too.

Similarly, in 2008, Jackson Browne prevailed in a suit against McCain, the Republican National Committee and the Ohio Republican Party for using his song "Running On Empty."

As Petty's and Browne's cases demonstrated, artists do retain some recourse when they believe a campaign has inappropriately tied their music to a political message or falsely implied their endorsement of a candidate.

Technically, however, the legal rights required to play just about every popular modern song at organized events of any kind are owned by the three largest performing rights organizations: the American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; and the Society of European Stage Authors and Composers. When someone pays for the right to play a particular song on the radio, on TV or in a live venue, the organization granting the transaction then distributes royalties to its affiliated artists.

The guidelines for how presidential candidates must proceed when they want to associate an extended campaign with a particular song are less straightforward than the specific statutes under which large venues like sports stadiums and nightclubs operate.

For a candidate, the simplest way to avoid conflict is to negotiate and pay a fee covering the duration of the campaign to the organization that holds the desired song’s license.

But according to Joel Schoenfeld, a partner with the law firm Mitchell, Silberberg & Knupp who specializes in music copyright law, it is more common for presidential campaigns to try to circumvent copyright law by simply featuring a particular song at events, without first acquiring the license for it.

“The problem is that for whatever reason, politicians seem to think there is some kind of right to use music as part of their political campaigns,” Schoenfeld said. “Sometimes they claim some form of fair use and other times, some kind of free speech issue. But, in fact, none of those claims ever really hold up.”

Though he declined to identify them, Schoenfeld said that he is aware of two 2016 presidential contenders -- one of whom is already in the race and another who has not yet officially declared -- who are currently negotiating with one of the big three performance rights organizations over the terms of a general payment to use a particular song at rallies.

The campaigns themselves are typically cagey about discussing the terms -- if there indeed are any -- under which they have licensed the rights to music. But the stories about how each candidate arrived at his or her particular theme song are as legendary as they are varied.

On an upcoming episode of “Drinking And Talking,” for instance, Democratic strategist Patti Solis Doyle, who managed Hillary Clinton's 2008 presidential campaign for a time, related the tale of how Bill Clinton settled on Fleetwood Mac’s “Don’t Stop” for his 1992 campaign immediately after the candidate’s driver played him the song on a cassette tape.

With another extended presidential campaign now kicking into gear, the declared and prospective 2016 candidates are once again settling on tunes that they hope will end up becoming just as iconic as Clinton’s pick was more than two decades ago.

In keeping with his image as an atypical politician with nonconforming tastes, Sen. Rand Paul (R-Ky.) has obtained a BMI license for “Frankenstein” -- a peppy, synthesizer-driven, entirely instrumental jam by the relatively obscure band The Edgar Winter Group.

“Our music selection reflects Senator Paul's preference for energetic, upbeat and modern tunes,” Paul's spokesman Sergio Gor said of the decision to latch onto the 1972 prog-rock anthem.

For his own launch, Sen. Ted Cruz (R-Texas) went a more conventional route, choosing musical accompaniments that underscored his effort to become the top choice of Christian conservatives, who tend to prefer more traditional musical fare.

Shortly before Cruz declared his candidacy in an announcement at Liberty University last month, his national spokesperson Rick Tyler took on an additional role as unofficial campaign DJ.

A Christian rock band would provide live entertainment for the crowd of about 10,000 students that greeted Cruz at the nation’s largest evangelical university. But Tyler also wanted Cruz to be sent off with a bang provided by a well-known recorded tune. His criteria: it needed to be uplifting, as well as patriotic.

For a while, he was stuck.

“I remember saying to my wife, God’s going to show me what song to play,” Tyler recalled.

Tyler said he gained a facility for music searches when he had to spend a couple of hours on iTunes to select dance music for his 50th birthday party. Two days before the campaign launch, he found his pick: country singer Aaron Tippin’s “Where The Stars And Stripes And The Eagle Fly.”

As the title suggests, there is nothing subtle about the flag-waving message in the song -- which was recorded and released the week after the 9/11 attacks. Tyler's choice was also in keeping with a personal conversion in musical taste that Cruz revealed shortly after his official announcement.

“On 9/11, I didn’t like how rock music responded,” Cruz said on "CBS This Morning," noting that he previously loved classic rock. “And country music, collectively, the way they responded, it resonated with me, and I have to say, it just at a gut level, I had an emotional reaction that says, ‘These are my people.’”

The two other major White House contenders who have already declared their candidacies are still working on their musical accompaniments.

Sen. Marco Rubio’s (R-Fla.) press secretary told The Huffington Post that the candidate had not yet settled on a campaign theme song. And there is no word yet on whether his preference for hip-hop might come into play. A spokesperson for Hillary Clinton did not respond to an inquiry on the matter, though pop star Katy Perry has already offered to write a 2016 theme song for the Democratic front-runner.

But with Dr. Ben Carson, former Hewlett-Packard CEO Carly Fiorina and former Arkansas Gov. Mike Huckabee all expected to declare their candidacies for the Republican nomination next week, the public address systems at campaign rallies will soon come alive again with a new slate of tunes to help keep the crowds on their feet.

Whether the lawyers end up getting involved once again is largely up to the campaigns.

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