Resolving the Dissonance: Can a Politician Use My Song Without Asking?
While many questions go unanswered each election season, one question that continues to stump both politicians and musicians alike year after year, is the extent to which a politician can use artists’ recorded music at campaign rallies. It is without fail that each election season, artists and songwriters take to social media platforms to denounce their support for political candidates after being informed their songs were blared over the speakers at rallies.1 However, the complex nature of music licensing presents much gray area and few bright line rules about what a political campaign can and cannot do without the artists’ permission.
As a general matter, the US copyright law allows stadiums, arenas, and other venues to play artists’ recorded music, so long as the venue has secured a public performance license.2 These public performance licenses are acquired through performing rights organizations, such as ASCAP, BMI, and SESAC, which permit the venue to publicly play any song included in the organization’s catalogue, assuming the venue purchases a blanket license to the entire catalogue rather than a license to a single work.3 Most musicians assign their music to one of these performing rights organizations as a way to track royalties that are owed to them.4 However, “[t]his means the artists don’t always need to be consulted…” when a venue licenses the musician’s works.5 Therefore, a politician is legally allowed to use any song that is within the catalogue licensed to the venue at which the rally is held.6
…However, campaigns usually go one step further by purchasing their own license in the event that the venue does not cover the music that they intend to use. This allows the candidate to utilize a playlist of their choosing without fearing a copyright infringement claim from the artist or composer.7
So, what does this mean for an artist who doesn’t want their music associated with a specific candidate? Do they have any control or options available? Like most answers in law, it depends.
A first potential solution, introduced in 2012 by BMI, is a specific license for political entities and organizations.8 “This license includes an opt-out clause allowing musicians to withdraw their music from the license…” that is specifically purchased by the political campaign.9 However, a political campaign’s license, from which the artist has opted out, can be superseded by a venue’s blanket license; this creates relatively unreliable protection for artists.10
A second solution that has been invoked by musicians in the past is suing a political candidate, or at least threatening to do so through a cease and desist letter, under state right of publicity laws or the Lanham Act.11 These laws seek to protect an artist’s brand by preventing “the appearance of ‘false endorsement’ of a candidate if the use of the song suggests that the artist is a political supporter.”12 However, there are no locatable cases in which an artist has moved beyond the initial cease and desist letter. This is likely because of the expense of litigation, as well as the fact that the song’s usage is typically an isolated occurrence.13 Further, because precedent is lacking concerning campaign usage, it may not be the best solution for an artist to rely on these untested measures.
While it seems that politicians have the upper hand in these circumstances thanks to public performance licenses, musicians still have social media as a powerful tool.14 It seems to be in a politician’s best interest to avoid negative publicity from a sassy tweet, Instagram post, or public comment by a dissatisfied musician denouncing support for a candidate. While this is a non-legal tool, ASCAP’s EVP of licensing has observed “that when a songwriter publicly objects to the use of a song by a campaign, generally, the campaigns comply with the request” to avoid further negative publicity.15
In sum, while the few bright line rules favor politicians seeking to use an artist’s music, there are still mechanisms in place, some more powerful than others, to give artists some control over association with a political candidate by way of music.
See Ariana Bacle, et al., Musicians Who Banned Presidential Candidates from Using Their Songs, Entm’t Weekly (Aug. 17, 2020, 11:58 AM), https://ew.com/gallery/presidential-campaign-music/?slide=6534242#6534242 [https://perma.cc/K3ZW-S63F].↩
Steve Knopper, Why Politicians Keep Using Songs Without Artists’ Permission, Rolling Stone (July 9, 2015, 7:13 PM), https://www.rollingstone.com/music/music-news/why-politicians-keep-using-songs-without-artists-permission-36386/[https://perma.cc/P3J6-46YJ].↩
See id.; see What is a Blanket License?, Songtrust, https://help.songtrust.com/knowledge/what-is-a-blanket-license [https://perma.cc/8CTZ-RZV9]↩
Christian Holub, Can Musicians Like Rihanna and Axl Rose Stop Politicians From Using Their Music?, Entm’t Weekly (Nov. 5, 2018, 6:46 PM), https://ew.com/music/2018/11/05/can-musicians-stop-politicians-from-using-music/ [https://perma.cc/RZ8J-SUBX]; see Chris Robley, What Is a Performing Rights Organization?, CD Baby (Apr. 29, 2013), https://diymusician.cdbaby.com/music-rights/what-is-a-performing-rights-organization/ [https://perma.cc/3JYR-7MVH].↩
Holub, supra note 4.↩
See Campaign Rallies and Music: Do Artists Have the Right to Demand Politicians Stop Using Their Songs?, Law Office of Jason H. Rosenblum (Sept. 28, 2018), https://jhrlegal.com/campaign-rallies-and-music-do-artists-have-the-right-to-demand-politicians-stop-using-their-songs-attorney-advertising/ [https://perma.cc/C4EV-MDNW] [hereinafter Campaign Rallies and Music].↩
See Holoub, supra note 4.↩
See Campaign Rallies and Music, supra note 6. See, e.g., Joey Nolfi, Pharrell Sends Trump Cease and Desist Letter for Playing ‘Happy’ at Rally After Pittsburgh Shooting, (Oct. 30, 2018, 10:02 AM), https://ew.com/music/2018/10/30/pharrell-donald-trump-happy-rally-pittsburgh-shooting/[https://perma.cc/NFZ6-PVU6].↩
Campaign Rallies and Music, supra note 6.↩
See Holoub, supra note 4.↩
See Bacle et al., supra note 1 (showing examples of musicians using social media to speak out against the use of music without permission); see also Nolfi, supra note 11.↩
Holoub, supra note 4.↩