Written By: Amy Metzgar
Politicians use music as a soundtrack to their campaign rallies,[1] commercials,[2] and other election events.[3] Generally, as long as the campaign has obtained a public performance license (or the venue they are using has a public performance license), the campaign is able to use the music.[4] The problem arises when the artists do not support the politicians that are using the music and do not want their songs associated with certain political campaigns.
Besides simply asking politicians to stop playing the artist’s music, there are some legal remedies that an artist can use to challenge a politician and their campaign from using music that is properly licensed: the artist’s Right of Publicity, the Lanham Act, and False Endorsement.[5] However, most artists who are signed with record labels do not own the copyright to their songs,[6] which makes it difficult for the artist to challenge the campaign’s use of their music. When artists do not own the copyright to their music, they have to rely on the entity that owns the copyright to take any legal action. So how do artists who do not own the copyright to their music stop politicians from using that music, especially when the campaigns have obtained the correct licenses?
While it is almost always an option for the owner of the copyright to file suit against the politician or the campaign, there is a much easier and more cost-effective method discussed in Danwill Schwender’s article The Copyright Conflict between Musicians and Political Campaigns Spins Around Again[7] where he concludes, “negative publicity may prove the most reliable deterrent” in artists stopping campaigns from using their music.[8] Artists such as Adele, Neil Young, Bon Jovi, Elton John, and many more[9] have utilized the method of asking the campaign directly to stop using their music. For some of the artists, this method worked, but for others, the campaign would simply prove that they had the proper license and continue to use the songs without the artist’s approval.[10] This has worked for some artists because the fallout that can come from using music without the artist’s permission (even with the correct licensing) can have a negative impact on how people view the campaign. Without legal recourse, asking the politician to stop using the music or sending a cease and desist letter is the only way that an artist has any chance of getting the politician to stop using their music.
In order to make it easier for artists to control when politicians use their music, the campaign should need to get explicit permission from the copyright owner, in addition to obtaining the proper license, in order to use music for campaign rallies, commercials, and other campaign related activities. This would protect the rights of artists and keep them in control of how their music is used. Until this happens, artists will have to rely on publicly asking politicians to stop using their music and hope that they listen.
[1] Ted Johnson, Adele Objects to Use of Her Music at Donald Trump, Other Campaign Rallies, Variety (Feb 1, 2016, 12:28 PM), http://variety.com/2016/music/news/donald-trumpadele-music-rallies-1201693891/ [https://perma.cc/V22L-BPMG].
[2] Daniel Kreps, Jackson Browne Settles With GOP Over “Running on Empty” Ad Use, Rolling Stone, (July 21, 2009 5:48 PM), https://www.rollingstone.com/music/music-news/jackson-browne-settles-with-gop-over-running-on-empty-ad-use-250454/ [https://perma.cc/P6T2-KYTV].
[3] Steve Knopper, Why Politicians Keep Using Songs Without Artists’ Permission, Rolling Stone, (July 9, 2015 7:13 PM), https://www.rollingstone.com/music/music-news/why-politicians-keep-using-songs-without-artists-permission-36386/ [https://perma.cc/LNN6-G8XR].
[4] ASCAP, Using Music In Political Campaigns: What You Should Know, https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf [https://perma.cc/Z8JF-WZKV].
[5] Id.
[6] Helienne Lindvall, Why Artists Should Retain Ownership of Their Recordings, The Guardian, (Jan 29, 2009 12:17 PM), https://www.theguardian.com/music/musicblog/2009/jan/29/recording-copyright-ownership#:~:text=Traditionally%2C%20when%20an%20artist%20signs,have%20a%20right%20to%20royalties [https://perma.cc/LEJ2-RQ93].
[7] Danwill D. Schwender, The Copyright Conflict Between Musicians and Political Campaigns Spins Around Again, Jstor, (2007),https://www.jstor.org/stable/pdf/10.5406/americanmusic.35.4.0490.pdf?refreqid=excelsior%3Aa97a7447d5f5984e11545ec8c51ea878 [https://perma.cc/3C8W-7NEH].
[8] Id.
[9] Charles Stockdale & John Harrington, 35 Musicians Who Famously Told Politicians: Don’t Use My Song, USA Today, (Jul 16, 2018 3:10 PM), https://www.usatoday.com/story/life/music/2018/07/16/35-musicians-who-famously-told-politicians-dont-use-my-song/784121002/ [https://perma.cc/7BLP-6RBK].
[10] Id.
