Many election seasons bring with them the same old song and dance. No, we don’t mean policy debates or constitutional interpretations — rather, the misuse of protected music by political candidates trying to create edgy and popular campaigns.
As political campaigns have become increasingly televised and at times, sensationalized, the use of dramatic music is ever more tempting. However, using theme music for entire political campaigns or even individual debates or town halls has led many musicians to send cease-and-desist letters to, and even go as far as filing suit against, politicians for the misuse of their music. If you’re working for a politician on a campaign video, be careful with the use of music in what you produce.
Artists Get Vocal
As recently as June 2015, presidential candidate Donald Trump used Neil Young’s “Rockin’ in the Free World” without permission. While Trump’s representatives stated that he obtained a license, Neil Young maintained that the use was not authorized. No lawsuit was filed, but the publicity was certainly not welcomed by Trump or his campaign.
Similarly, Mark Rubio and early presidential candidate Scott Walker both used music in their campaigns that was not authorized by respective artists. Walker, who used the song “I’m Shipping Up To Boston” by the Dropkick Murphys, got pretty direct, and pretty strong, feedback from the band. The band demanded Walker stop using their song, since they “literally hate [him].” The good news is that there are laws that politicians can follow to avoid such bad press and potential lawsuits.
What’s Law Got to Go with It?
Several laws should be taken into account when considering using music in a campaign video. The American Society of Composers, Authors and Publishers (ASCAP) is a member-based nonprofit organization that, among other things, manages its members’ copyright licenses and licensing fees. According to ASCAP, the unauthorized use of music in campaign videos often runs afoul of copyright law, the right of publicity and dilution and false endorsement under trademark law.
Copyright’s Been a Little Bit Hard on You
Violations of copyright law are among the most frequent in such cases. Copyright law grants the authors of various types of works the exclusive right to make and sell copies of their works, create derivative works and publicly perform and display those works. Granted for the duration of the author’s life plus seventy years, copyright protection serves as an engine for creating music, art, literature, videos and other forms of expression without the fear of having that work stolen or otherwise used by another without the author’s consent. In cases where politicians violate copyright law, they typically fail to obtain licenses from the necessary interested parties.
An exception to the Copyright Act is the Fair Use provision. Under Fair Use, a person can use at least some of another’s copyrighted work without permission. But Fair Use is limited to criticism, comment, news reporting, teaching, scholarship or research. Political commercials are not protected by Fair Use, however educational, even if the commercials criticize other candidates or incumbents.
Political commercials are not protected by Fair Use, however educational, even if the commercials criticize other candidates or incumbents.
According to ASCAP, a political campaign should “contact the song’s publisher and possibly the artist’s record label to negotiate the appropriate licenses with them.” Importantly, “campaign videos containing music that are posted on the Internet also require these licenses. Once the commercial has been produced, the TV and radio stations, and any websites that transmit these commercials must hold a public performance license.” ASCAP cautions that while many venues have public performance licenses, obtaining a license for the campaign itself may be easier and offer more protection for the candidate. This may be done by obtaining a public performance license from ASCAP directly. At the very least, obtaining this license would provide protection against violations of copyright law.
You Gotta Fight for Your Right to Publicity
Copyright law is not the only obstacle to using music for political commercials. The right of publicity, which in most cases is covered by state law, gives a person the right to protect and control the use of his or her name, image, “likeness,” or any other aspect of their personal identity in commercial contexts. While this usually applies to celebrities and other known persons or groups of people, the application of this right varies state by state. A musician, for example, has the right to license the use of his image or the image of one of his famous songs. This protects the composer’s or performer’s economic interests since, without this right, a musician’s work could be used and reproduced without consent and without giving any credit or compensation, creating a disincentive to continue producing creative works. The best way to avoid violating an artist’s right to publicity is simply to get authorization from that artist in writing.
Trademark Law is a Funky Bunch
Yet another consideration is trademark law. Falling under the auspices of trademark law is the Lanham Act, the primary federal trademark statute in the United States. Among its safeguards and prohibitions, the Lanham Act protects the dilution of a trademark, which can range from a restaurant logo to an automobile model to the title of a band or song. Dilution occurs when a mark is used in a way that decreases the uniqueness of that mark. A musician may, for example, file a claim against a politician who uses the name of his song as the theme of the politician’s campaign or simply plays a song in connection to the campaign. Proving trademark dilution, however, does require courts to determine whether a “likelihood of confusion” exists, which includes a multi-factor test. This particular issue is not raised often in cases of improper use of music during political campaigns, but it is a feasible defense.
The Lanham Act also provides protection against false endorsement, or the implied support of the featured artist. This aspect tends to get personal. Artists tend to take to social media in such cases since false endorsement often is not about the money, but rather about the image. An artist may not want to be associated with a certain political candidate and, in today’s world of instant Internet-enabled discourse, may speak up swiftly and sometimes harshly. Negative press can be avoided by getting the consent of the artist and all other interested parties.
The best way to protect yourself and potentially even the campaign you are working for is to be proactive about obtaining the rights and permissions needed to use music. According to ASCAP, a campaign “should contact the management for the artists and/or songwriters of the songs in question and obtain their permission.” There’s more, however. “In addition to permission from management, a separate negotiated license maybe required by the publisher of the composition, and if used, the record label that controls the master recording.” Staying within the copyright law can be more difficult than it looks.
ASCAP provides a wealth of information on its website and is a great initial go-to if you are considering using music for a campaign. ASCAP may be able to answer your questions or point you in the right direction. Of course, if things get overly complicated or you would like some help along the way, be sure to contact your friendly intellectual property lawyer for guidance and proper advice.
Roman Zelichenko, based in New York City, is a business consultant with intellectual property experience, and has drafted legal opinions and articles on the subject. Mark Levy is a movie maker and intellectual property attorney based in Colorado.