Winston & Strawn litigation partner Michael Elkin, who concentrates his practice in new media and copyright matters, was featured in an October 30, 2008 Bloomberg radio interview and podcast discussing requests from artists Bon Jovi, Foo Fighters, Heart, and Survivor that the McCain-Palin campaign stop using their songs without their permission.
“They don’t have a right to object if McCain is using those songs at a [political] rally because the McCain group and the venues where he’s actually speaking at get what’s called performing rights licenses from various organizations that the artists actually negotiate with...” Elkin told Bloomberg. "However, if McCain were to use those songs [in a commercial manner], let's say in an ad that was broadcast over the television, that would be a different story." In that instance, Elkin noted,"...the McCain campaign would actually have to get the artists’rights [permission or license], otherwise he would subject himself and the campaign to claims of copyright infringement."
When asked if the artists are being overly protective of their works and are concerned that voters will think they are endorsing a particular candidate, Elkin said, "Not directly, but there probably is some subliminal connection and that’s what the artists are taking umbrage at and they believe that their music is being abused and they probably have some rationale to support that. Unfortunately, there’s nothing to necessarily prove that a voter is going to somehow connect the artists’ creation to the politics."