This piece was previously posted on NewMusicBox, a site for composers and fans of contemporary classical and other experimental music, on September 24, 2015.
It’s another presidential election cycle and—in addition to PAC moneymen, countless commercials, polls, trolls, sound bites, and sniping—there’s the new tradition of one candidate or another pissing off some well-known recording artist by using the artist’s song without consent. Already we’ve had Neil Young trashing Trump’s use of “Rockin’ in the Free World.” REM is suing Trump, along with Sen. Cruz, over their use of “It’s the End of the World as We Know It (And I Feel Fine).” “Survivor” is suingover the use of “Eye of The Tiger” during Gov. Huckabee’s rally in support of Kim Davis, the county clerk who was jailed for refusing to issue any marriage licenses since she’d have to issue them to same sex couples. And the election is still more than a year away!
Are the artists’ claims likely to be successful? Readers of my prior posts can probably postulate that my answer will be “it depends.” Let’s see what you can and can’t do when using recordings of songs in connection with political campaigns. While some of the dos and don’ts involve some now-familiar copyright and music licensing principles, others potentially involve the federal trademark statute and various states’ laws on the right of publicity as noted in ASCAP’s FAQs on music in political campaigns.
Who can forget The Donald riding down the escalator to the Neil Young classic to announce his candidacy? That use is probably permissible. If a venue, such as a hotel, convention center, or other public gathering place has licenses from the PROs (ASCAP, BMI, and SESAC), then the use of the music is almost likely allowed and there’s not much the songwriters can do about it. The songwriters probably have a better case against Kim Davis and her cohorts, as the organizers of the impromptu outdoor post-prison rally probably didn’t obtain PRO licenses for the event.
Notice I mentioned songwriters and not recording artists. There has long been a public performance right in musical works and that right is codified in Section 106 of theCopyright Act. However, as I’ve mentioned in other posts, the US is one of less than a handful of nations, including North Korea and Iran, that doesn’t have a public performing right in sound recordings for traditional television and radio broadcasts or for playing the recording over loudspeakers. Although legislation has been introduced in recent years and the Copyright Office endorses such a right, currently the only public performance right in a sound recording is in “digital transmission,” i.e., internet streaming, and Sound Exchange is the U.S. collective that licenses those rights and pays out royalties on behalf of artists and labels.
Readers of my most recent post on fair use would not be surprised that the use of the clips of politicos and other notables on newscasts would be clear examples of fair use under Section 107 of the Copyright Act. Before you even get to the four factors of Section 107, the statute states that items like “criticism, comment, news reporting, teaching, scholarship, or research” are among the uses typically found to be fair. And TV networks and stations have PRO licenses to cover the music use.
Both songwriters and recording artists would have a compelling case under copyright law if a candidate used a song in a commercial without permission. Using pre-recorded music in any audio-visual work requires synch licenses from both the copyright owner of the song (the music publishers) and the copyright owner of the recording of the song (the label). As I explained in my last post, a fair use argument for this kind of usage would almost certainly fail, given that these uses are typically licensed. Nor could a candidate claim that the use of the music is permitted as First Amendment “political” speech. The First Amendment protects the right of individuals (and according to the Supreme Court, corporations) to freedom of expression, especially political speech. It doesn’t generally give you the unfettered right to use someone else’s expression, however.
But consideration of Copyright Act provisions isn’t the end of the inquiry here. Artists may also claim violations of Section 43(a) of the Lanham Act, the federal trademark statute. Although it’s generally applied to false advertising claims, the statute could be used to claim that the association with an artist creates a “likelihood of confusion” based upon a misleading “association… with another person, or as to the origin, sponsorship, or approval of his or her goods, services…” or in other words, a false or misleading endorsement of the candidate. So, regardless of PRO licenses, candidates would be well advised to get permission if they wanted to use anyone’s hit as a theme song.
Moreover, it’s possible that a candidate could violate an artist’s actual trademark, which would constitute a direct violation of the Lanham Act, which—like the Copyright Act—can subject an infringer to money damages and injunctive relief. While it’s not likely that a candidate would use a band’s trademarked logo, names and phrases associated with recording artists and other entertainers often are trademarked. Just see how fast Michael Buffer’s legal eagles will swoop down on you if you use the phrase, “let’s get ready to rumble” in any kind of commercial activity. Many artists, including Madonna, have trademarked their names, and Taylor Swift recently filed a whole bunch of trademark applications for phrases associated with her 1989 album. As any copyright maven knows, titles, names, short phrases, and slogans can’t be copyrighted. But they can be trademarked for all kinds of uses from apparel to greeting cards.
Then there’s the “right of publicity” (sometimes referred to as the right to privacy), which, unlike copyright and trademark, is governed by individual state’s laws. While many states have statutes governing this right, including New York and California, other states enforce these rights based on common law (judicial precedents). The right of publicity typically includes the use of an individual’s name and likeness for commercial purposes. That’s why songwriter, label, management, and other agreements typically have provisions granting the use of the person’s name and approved likeness and bio for a variety of uses. While most composers would hardly object to their music publisher or label using their name and image to promote their works, these rights don’t automatically flow with the copyrights to songs or recordings of them. A candidate’s using a song without permission could constitute a violation of the artist’s publicity/privacy rights.
And there’s another wrinkle to the right of publicity. In some states, like California, a celebrity’s right to exploit his persona extends beyond the grave. In others, like New York, the right terminates when the individual does. So, in addition to wills, trusts, and other documents, if you’re a celebrity, a very important aspect of estate planning is deciding upon your domicile at the time of your eventual demise.
So, what have we learned here? Campaigners, much like cover bands, should be careful about using songs. If you’re paying tribute to a band by simply performing covers of their songs in a venue that’s got PRO licenses, then you’re almost certainly okay. But if you start selling hats, T-shirts, and mugs emblazoned with the band’s logo, a picture of its members, or a well-known phrase from one of their songs, or use the songs to sell products or services, then you’d better be prepared to pay tribute in the form of cold cash as you could run afoul of trademark and publicity laws.
One would think that politicians and their advisors would know this by now. Given that there are artists on every point in the political spectrum, a candidate could simply solicit one sympathetic to their views and avoid all sorts of tsuris. So when it comes to using someone else’s stuff, whether in political campaigns or artistic collages, when in doubt, leave it out. Or as I’ve said before, you might want to seek consent of the rights holder (or the advice of competent counsel) before putting it in.