Music and politics have always made for natural bedfellows. No wonder – both provide telling portrayals of the cultural zeitgeist at any given time. Musicians frequently write about politics and political issues. And politicians (like many others) are often inspired by music.
But for political candidates who wish to express their musical tastes by using particular songs as campaign music, many musicians have only one thing to say:
How can this be? Haven’t these musicians already given permission for their songs to be used? And if they didn’t give permission, can’t they just sue the candidate?
The short answer is that politicians do need permission—but not always from the musician (or other copyright holder, as not all copyrights are owned by their creators. We use the word “musician” in this blog post to refer to whoever the copyright owner may be.)
There are various types of music licenses, and the license required depends on how the music is being used. A televised commercial requires two licenses. One is a mechanical license, which grants reproduction and distribution rights for a musical recording. The other is a synchronization license, which permits the license-holder to sync the musical recording with corresponding audiovisual images. These licenses are generally issued by rights managers or publishers on behalf of the musician. So any time you hear a song on a televised commercial, the musician has given approval (or the entity airing the commercial is opening themselves up to a lawsuit).
But a live event, such as a campaign stop or party convention, is different from a commercial and requires a different kind of license: a public performance license. These licenses are granted by performing rights organizations (PROs), which collect royalties on behalf of musicians for the public performance of their songs. When a song is played on the radio, at a nightclub or gym or otherwise performed publicly, PROs collect and distribute the payments for these performances.
As you may imagine, the vast number of songs played daily mean that there’s a lot to keep track of. One way PROs handle this is by offering blanket licenses. These allow for the music user to publicly perform any song in the PRO’s music catalog. No permission is needed from individual musicians.
Here’s how this all works in real life. Take, for example, “We are the Champions” by Queen. A political candidate could not use the song in a television commercial without getting permission from the band. However, if a candidate wanted to play “We are the Champions” at a campaign rally, or at his party convention, he would only need a license from Queen’s PRO, BMI. And if the candidate were to have a blanket license from BMI, then he would be within his rights to play any song in BMI’s catalog at his political rally. Whether or not Queen approves does not matter.
So what recourse do musicians have when a political candidate they don’t like uses one of their songs? If a musician wants to litigate:
- They can attempt to sue under the federal Lanham Act, which controls trademarks and deals with (among other things) falsely implied endorsements. A musician might argue that the politician’s use of the song implies that the musician endorses the politician, in violation of the act.
This concept hasn’t been very well tested in the courts, though, and the lawsuit that went furthest on this issue had its Lanham Act claims rejected. Plus, with so many musicians this election season speaking out against the use of their music, the “implied endorsement” theory might be a long shot.
- Musicians can sue under right-of-publicity laws, which also often cover false endorsements. Yet these laws vary state by state, and not all states have one. The state where the song was played would need to have a right-of-publicity law in order for legal action to be possible. And even still, the implied endorsement theory might fail.
- Songs that were recorded before 1972 are currently not subject to federal copyright law, but to state law. So if a pre-1972 song were played at the Democratic National Convention, a court would look to Pennsylvania law to determine whether that state protects against the unauthorized performance of music. If the state does, then the musician may have a valid cause of action.
But litigation can be expensive and time-consuming – and there are no guarantees of success. So musicians might want to try one of these alternate methods:
- They can ask their PRO to revoke the license for the particular song, creating an exception within the blanket license. This purportedly worked for Queen, who did not want “We are the Champions” to be played at the Republican National Convention.
- And of course, they can take their case to the court of public opinion. This seems to be the most popular option this election cycle, with many musicians making statements through their publicists and venting their frustrations on social media. Which is how tweets such as “@ScottWalker @GovWalker please stop using our music in any way…we literally hate you !!! Love, Dropkick Murphys” make their way into the public consciousness.
Copyright law can be confusing. If you have a question about copyright law or would like to discuss a matter pertaining to copyrights, trademarks, patents, or rights of publicity, visit us online at www.lomnitzerlaw.com or call us at 561.953.9300.