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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)