March 5, 2020In the News

Brown quoted in "Public Enemy Spat Puts New Twist on How Candidates Use Hit Music"

Bloomberg Law

Chuck D and Flavor Flav espoused the mantra “Fight the Power” for decades. Now they can’t agree what power needs fighting.

Flavor Flav’s firing from the rap group Public Enemy in a dispute over Chuck D’s performance at a rally for Democratic presidential candidate Bernie Sanders put a new twist on well-worn disputes over whether artists can prevent politicians from using their copyrighted works.

Bruce Springsteen famously objected to Ronald Reagan’s proposed use of “Born in the U.S.A.” in 1984, and such disputes have been a fixture of virtually every presidential campaign season since. Elton John, R.E.M., Tom Petty, the Rolling Stones and Aerosmith have also complained about such use of their music. The Public Enemy dispute stands apart, though, because of its intra-band nature and its focus on trademark and right of publicity laws, not on copyright.

Years of acrimony between the bandmates reached a crescendo after Flavor Flav sent a letter to Sanders’ campaign demanding it stop using Public Enemy’s name to market Chuck D’s appearance at a rally in Los Angeles. The letter called it “grossly misleading” because Flav wasn’t endorsing Sanders and “there is no Public Enemy without Flavor Flav.”

Chuck D, whose real name is Carlton Ridenhour, has owned the Public Enemy trademark since 2002. Attorneys say Flavor Flav, born William Drayton, likely couldn’t block its use. But he may have a right of publicity case, which lets individuals control commercial use of their own image and likeness, if his name or imagery invoking him—such as his iconic oversized-clock necklace—is used in commerce, trademark attorney Robert W. Zelnick of McDermott Will & Emery said.

Flavor Flav could also have a false endorsement claim under trademark law. Copyright attorney Jennifer Ko Craft of Dickinson Wright PLLC said that would be a more “amorphous” and weaker claim. But prolific musician endorsements of politicians—Cardi B and Jason Mraz backing Sanders, John Legend backing Elizabeth Warren, and Cher backing Joe Biden, among others —could strengthen a false endorsement case, intellectual property attorney Jeffrey H. Brown of Michael Best & Friedrich LLP said.

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