American politicians, rarely shy about getting their message out, have found themselves on the receiving end of one from pop stars: “Don’t Use Our Songs.”
Comedian John Oliver recently aired a video of performers, including Ann and Nancy Wilson of Heart, Michael Bolton, Usher, Josh Groban, Cyndi Lauper, Sheryl Crow, Dan Reynolds of Imagine Dragons, John Mellencamp and a piano-playing cat, complaining about political campaigns using songs without permission on his show, “Last Week Tonight.”
The video comes on the heels of a controversy involving Donald Trump’s use of Queen’s “We Are the Champions” against the wishes of the band’s surviving members. But Trump, whose campaign has drawn the bulk of complaints during the 2016 election season, is not alone, as Oliver noted in a recap of recurring history of political campaigns’ using popular recordings against their creators’ wishes.
While this year’s presidential contenders have drawn the ire of musicians by using their songs at campaign events, some of those uses might actually be valid under federal copyright law if the event venues had valid licenses from performance rights organizations such as the American Society of Composer, Authors and Publishers, Broadcast Music Inc. or the Society of European Stage Authors and Composers.
George Washington University law professors Robert Brauneis and Roger Schechter make that point in a piece written for their copyright law textbook, “Music on the Campaign Trail.”
A song’s composers and recording artists may not like having their songs used by campaigns, but if they belong to a performing rights organization, it’s likely that “Their songs are licensed to be played basically at every major venue in the United States, and that includes stadiums in Cleveland and Philadelphia,” Brauneis, referring to 2016 Republican and Democratic national convention host cities, told Bloomberg BNA. “So from a copyright point of view, they don’t have a leg to stand on.”
An artist could make a claim of false association or false endorsement, but that’s a tough case to make, especially if a song is used just once or occasionally, Brauneis said.
Even if a song is used frequently, “I think most people are so used to hearing famous rock songs of the '60s, '70s, '80s and '90s being played all over the place at all sorts of events, that they don’t think that this must mean that Queen likes Trump.”
Campaign commercials are different. If a candidate uses a song in a video or advertisement, there’s a separate license requiring permission from a copyright owner.
Most of the recent complaints don’t concern commercials. But Barry I. Slotnick, a copyright lawyer with Loeb & Loeb LLP, New York, said one could argue that those uses cross into quasi-commercial territory.
“Nothing’s ever just live,” he told Bloomberg BNA. “It’s going to be used again and again and again in the candidate’s campaign material and on the candidate’s website.” In that sense, it’s the functional equivalent of a commercial.
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