In any season of political campaigns, candidates on the trail tend to use music as a tool to energize and inspire crowds or motivate potential voters. It’s an American tradition that dates back to George Washington himself. Sometimes, though, candidates appropriate music whose authors and rightsholders may not approve of its use, for a variety of reasons. Past campaign cycles have generated a long list of artists angered by the use of their work, and already it seems the 2016 campaign season will follow suit.
In this document, we consider three different questions: what to do if a campaign uses your music and you’re not okay with it, what to do if a campaign uses your music and you are okay with it, and what to do if you are a political candidate and want to use a musical work in your campaign.[i]
What to do if a campaign uses your music and you’re not okay with it
How much recourse you have over unwanted use of your music can vary widely based on how your music is used and where.
Campaign Rallies & Events
Anytime a campaign plays a song at a rally, they must ensure that they have a public performance license covering the composition’s use. Most major public venues such as convention centers and arenas typically purchase blanket licenses from performance rights organizations or PROS (ASCAP, BMI, SESAC) allowing campaigns to “publicly perform” any song in their repertoire, which includes the vast majority of compositions. However, these licenses may not cover all uses, so most national campaigns also purchase their own blanket licenses covering all campaign events; an additional benefit is that if they have a whistlestop event on the campaign trail at a factory or in a park and they throw a playlist on the P.A., they’d still be covered.
If the campaign hasn’t obtained such a license, you can contact them and demand they stop using your work. If, however, the campaign has indeed obtained a blanket license to play the music, you probably don’t have legal grounds to stop them from playing the music or a legal basis for a cease & desist order based on copyright infringement. But there are some potential non-copyright legal claims that a performing artist could level at a campaign. As ASCAP notes, “While the campaign would be in compliance with copyright law, it could potentially be in violation of other laws:”
- Right of Publicity laws vary state by state, but they protect famous people’s rights to control the commercial use of their identities.
- The Lanham Act is the U.S. Court system’s primary protection against trademark infringement, especially against dilution and and confusion caused by unauthorized use of a trademarked band name.
- False Endorsement claims address the implication that an artist supports a political message or candidate because their work is used.
Online Videos & Other Synchronized Media
For videos and other synchronized media that end up on TV or YouTube, additional permissions need to be negotiated with both the publisher and the sound recording copyright owner before the campaign can use a song. That means creators have a greater degree of control over where their work is used. Because these are not compulsory licenses, you have the right to refuse a work’s use. Former Florida Governor Charlie Crist failed to obtain these permissions for a 2010 ad featuring the Talking Heads song “Road to Nowhere” which resulted in an unspecified settlement and a fairly humiliating apology video. Additionally any websites that host such videos must also have public performance licenses.
Making a statement in media
Lawsuits are expensive, and whether on copyright infringement or other grounds, these sorts of cases rarely make it to court. A less expensive and potentially more effective tactic for musicians is to release a simple statement to news media and/or music press disagreeing with the use of your work. You don’t need a legal basis for a cease and desist order to ask a campaign to stop using your work and refrain from using it in the future. A recent example of this was Neil Young’s management’s response to Donald Trump’s use of “Rockin’ In The Free World:
“Donald Trump was not authorized to use “Rockin’ In The Free World” in his presidential candidacy announcement. Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.”
It can be as simple as that to send a clear message. Usually, campaigns will cease use of your work to avoid further embarrassment.
What to do if a campaign uses your music and you are okay with it
If you get advance notice that a campaign will be using your musical work as part of a campaign, you should make sure that all rightsholders and partners you work with including labels, distributors, and publishers are aware of your support of the candidate and have cleared the work to be used. You don’t want your record label reflexively having a video taken down from YouTube because they don’t know permission was arranged, for example. Additionally, if the campaign is a smaller/local race where the candidate hasn’t purchased a blanket license, you will want to contact your PRO and let them know that you’ve granted permission and waive your public performance royalties for that use.
What to do if you want to use a musical work in your campaign
If you are a politician and you or your team want to use a particular musical work in a rally, then the simplest way to ensure that you properly license the work is to make sure blanket licenses are paid to the appropriate PRO (ASCAP, BMI, or SESAC). However, if you plan on using a work in an audiovisual context, additional synchronization fees will have to be negotiated directly with the rightsholders, which will be the sound recording copyright owner (usually a record label) and the publisher.
If you plan on using a musical work in a high profile context, such as playing a song multiple times as you announce your bid for a political position, it’s a good practice to go beyond obtaining a license and obtain explicit permission from rightsholders, and especially from the artist him/herself. This is both to avoid an embarrassing incident from a PR standpoint and to avoid any possibility of legal entanglement.
What about Fair Use?
Fair use is an important principle in copyright law-it’s an affirmative defense against allegations of copyright infringement that allows for certain kinds of uses of copyrighted works without the permission of the author or rightsholders. Fair use allows certain kinds of free expression, criticism, and commentary to flourish. While every fair use claim must be evaluated individually, simply playing songs to soundtrack rallies or campaign videos in the absence of a license would generally be unlikely to meet the standard for a successful fair use defense.
ASCAP Factsheet: Using Music in political campaigns: what you should know.
Smithsonian Folkways: Presidential Campaign Songs
Stanford University Libraries: Guide to Fair Use & Copyright
[i] This document is NOT meant to be legal advice, and artists or campaigns facing these issues should consult an attorney.