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Political Campaigns and Unauthorized Music

June 22, 2020
Post by Brandon W. Clark

As the 2020 presidential election approaches so does the opportunity for political candidates to end up in the headlines for using unauthorized music in their campaigns. In nearly every campaign cycle you hear about a recording artist or songwriter upset that a politician or campaign used the artist's music without authorization. In fact, Tom Petty’s estate recently sent President Trump a cease and desist letter after the campaign played Petty’s song “I Won’t Back Down” at a recent campaign rally.

A list of notable disputes involving musicians and politicians include Bruce Springsteen vs. Ronald Reagan, Sting vs. George W. Bush, Survivor vs. Mike Huckabee, Sam Moore vs. Barack Obama, Jackson Browne vs. John McCain, Heart vs. Sarah Palin, Rush vs. Rand Paul, R.E.M. vs. Donald Trump, and the list could go on and on. Here's what politicians need to know to avoid the negative publicity associated with using unauthorized music in their campaigns.

First, using a copyrighted song without a license is infringement, even if it's for a non-commercial or political reason. Generally, songs have many copyright owners (writers, musicians, record label, music publisher, etc.) and that means you may need several licenses. The kind of license(s) needed depends on how the music will be used.

In nearly every instance, you will need a license from the copyright owner of the composition, which includes the underlying music, melodies, and lyrics of the song. This license is usually obtained from the publishing company and in some situations the use of the song may be covered by a blanket license with a performing rights organization such as American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or Society of European Stage Authors and Composers (SESAC). Most event centers and venues are going to have blanket licenses with ASCAP, BMI, and SESAC, but it’s important to look to the specific language of those licenses as they likely limit the scope of the license as it relates to political events.

If you are using a recording produced by the recording artist, and/or synchronizing the song with any audiovisual elements, you will likely also need a license from the copyright owner of the audio recording. This is called a "Master License" and is usually obtained directly from the record label.

Depending on the specific use of the song, copyright law isn't the only relevant area of law that needs to be considered. While a campaign could be in compliance with copyright law, it could potentially be in violation of other laws including the artist's "Right of Publicity”, which may provide image protection for famous people or artists, the "Lanham Act”, which prevents the confusion or dilution of a trademark (such as a band or artist name) through an unauthorized use, and/or "False Endorsement" where use of an artist's work implies that the artist supports a product or candidate.

In most cases the more closely a song is tied to the "image" or message of the campaign, the more likely it is that a recording artist or songwriter of the song could object to the song's usage in the campaign. This can be a complex area of law so it's best to contact the artist's management or publishing company to obtain permission directly before using an artist's music. The artist's manager will also be able to direct you to the relevant copyright owners in order to secure the required licenses.

For additional information ASCAP has prepared guidelines for using music in political campaigns.
ASCAP: http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf

This issue clearly illustrates the intersection of copyright law, trademark law, and the affiliated personality rights that authors and musicians are entitled to. This can be a complicated area of the law so we recommend that you seek the advice and counsel of an attorney with experience and knowledge in the area.

Brandon W. Clark is the Chair of the  Copyright, Entertainment & Media Law Practice Group  at McKee, Voorhees & Sease, PLC. For additional information, please visit  www.ipmvs.com or contact Brandon directly via email at  brandon.clark@ipmvs.com


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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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