The Use of Popular Music in Campaigns

With campaign season heavily underway, it is that time of year again for candidates to utilize popular songs and music as a means of conveying catchy slogans and campaign messages to the masses.  While using popular music as campaign entrances or rallying themes is a common practice for political candidates, these candidates may unknowingly run afoul of copyright and intellectual property laws if their use is unauthorized by the music artists or publishers that own the rights to that song.

Donald Trump is one of the more recent candidates to experience the embarrassing situation that can occur when artists publicly rebuke candidates for using songs without their permission.  Neil Young released a statement stating that Trump was not authorized to use “Rockin’ in the Free World,” and to add further insult to injury, Young then endorsed Bernie Sanders for the American presidency.  One of the most famous incidents of rocker versus politician occurred when Bruce Springsteen, the boss himself, heavily criticized Ronald Reagan’s use of “Born in the U.S.A.” in Reagan’s 1984 campaign, stating that Reagan was misunderstanding the lyrics, which led Springsteen to question whether Reagan actually listened to his music at all.  Springsteen would then go on to object to Bob Dole and Pat Buchanan’s use of the song in their respective 1996 and 2000 campaigns.  Democratic candidates, similarly, have not been immune to objections from artists either.  In 2008, Barack Obama received a cease and desist from R&B duo, Sam and Dave, asking him to refrain from using “Hold On, I’m Comin’” at rallies.

Because of these high-profile incidents, most people assume, incorrectly, that any use of music without the artists’ explicit permission constitutes unauthorized use, and as a result, is a violation of U.S. copyright law.  Instead, the use of popular music in large public venues is often permissible because these venues usually have preexisting licensing agreements in place that grant the right to public performance of these songs.   For example, many large venues and event centers have contracted with organizations like the American Society of Composers, Authors and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”), and the Society of European Stage Authors and Composers (“SESAC”) for the licensing rights to publicly perform songs in their respective catalogues.

It should be noted, however, that these public performance licenses do not cover a candidate’s use of music in a television or online campaign advertisement.  In 2008, John McCain found himself on the receiving end of a lawsuit filed by Jackson Browne for his use of Browne’s “Running on Empty” in an attack advertisement against Barack Obama.  Browne won his suit against McCain, receiving an undisclosed settlement as well as a public apology from McCain for his “misappropriation” of the song.  But even if an artist’s fails to lodge a specific complaint, third-party online platforms like YouTube may take it upon themselves to block or remove uploaded campaign advertisements if they believe that the content infringes upon the rights of another.    As copyright law considers this a different medium than public performance, candidates should contact the song’s publisher and/or the artist’s label to secure license rights if they intend to use protected music in their online advertisements and television commercials.

Despite whether a valid licensing contract exists, artists may still wish to avoid having their intellectual property used in connection with particular political candidates and their messages.  As such, while copyright law itself may not provide artists with a solution, a different aspect of intellectual property law, specifically the “right of publicity,” may allow artists to protest the use of their music without permission.  Right of publicity laws exist in order to allow famous people to control the use of their image and related intellectual property.  If a celebrity or artist believes that the use of their intellectual property is harmful to them, they may bring a right of publicity claim in court.  As a result, even if candidates hold the proper licensing rights to use protected music in their campaigns, they may also want to include disclaimers to avoid any potential lawsuits.

With the rise of social media, celebrities and artists can quickly deride or condemn the use of their music publicly, even if such use is technically legal.  As such, campaign candidates should attempt to secure the rights to any songs or media that they hope to use in connection with their campaigns.

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