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UC Law Journal

Abstract

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies. Putting the intricacies of copyright licensing aside, what motivates artists to object to the use of their songs by political campaigns? This Article identifies and measures three types of harm artists may reasonably fear. First, an artist may worry that campaign use of their song will harm its market value and popularity. To test that theory, we examine a novel set of industry streaming data to identify any meaningful shifts in streaming consumption after well-publicized campaign uses. Second, campaign use may falsely lead the public to believe that an artist supports or endorses a candidate. And third, an artist may fear a tarnishment effect. That is, consumers may negatively associate the artist or their music with an unpopular candidate even in the absence of any perceived endorsement. We test the endorsement and tarnishment theories through an experimental design that measures consumer reactions to a set of hypothetical campaign uses. Our data paint a complicated picture. We find some evidence that songs used by the Trump campaign suffered a drop in streaming consumption, but we cannot conclude that campaign use drove that reduced popularity. We also find strong evidence that an artist’s perceived support or endorsement of a candidate is material to consumers. But consumers do not appear to infer that an artist endorses a candidate when their campaign uses that artist’s song. Finally, we found that less well-established artists are most likely to suffer from tarnishing associations when their songs are used by divisive politicians. Our results do not fully resolve the thorny doctrinal and normative questions at the heart of these controversies, but they do offer a crucial empirical grounding for a recurring policy debate.

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