Recent News - Music in Political Campaigns: Can Candidates Rock?
Music in Political Campaigns: Can Candidates Rock?
Posted by Joleen Hughes
You may have heard REM bash Donald Trump for using their song “It’s the End of the World” on the campaign trail. This issue is nothing new. Over the years artists from Bruce Springsteen (Ronald Reagan) to Tom Petty (Michele Bachmann) to Heart (Sarah Palin) to the Dropkick Murphys (Scott Walker) have objected to the use of their music in political campaigns. Let’s take a look at whether candidates can “rock.”
First, a quick music licensing primer:
- Copyright protection for music exists in both the musical composition itself (the song created by the songwriter) and the actual recording of the song (the version you hear on the radio or download on iTunes).
- Generally, the composition copyright is controlled by the music publishers/songwriter and the recording copyright is controlled by the record label/artist. Where this gets confusing is that in many cases the songwriter and the artist are one and the same. Nonetheless, there are still different rights involved, and different permissions needed.
- Using my favorite song “Jolene” by Dolly Parton, I will illustrate for you how this works: Dolly Parton wrote the song “Jolene” - music, lyrics and composition. She also recorded “Jolene” for her record label, and is the “artist” for the purpose of this recording. Recently, Miley Cyrus recorded a new version of “Jolene.” Miley is now the artist with respect to this new recorded version, but Dolly Parton still remains the songwriter. Miley (and her record label) must pay Dolly license fees to use the song.
OK, now using a faux candidate “Candy” and the faux song “Pick Me,” let’s take a few hypothetical scenarios to see if, when and how a candidate can rock:
USE AT CAMPAIGN EVENT: Let’s say Candy has a number of public campaign stops in Seattle: one in Gas Works Park; the second at the Crocodile; and the last at the Key Arena. At all of these, Candy plans on using the Artist’s recording of “Pick Me.”
1. “Pick Me” is played during event, but no audio/video recordings are allowed: Whenever a song is played in “a place open to the public” or at any place where there are a substantial number of people, this is considered a “public performance.” In this case, only a public performance license (PPL) covering the composition is required. A PPL is obtained from a Performance Rights Organization (PRO) like ASCAP, BMI or SESAC.
- When Candy is at a public location such as Gas Works, the PPL is directly acquired through a PRO by Candy because a park generally does not pay for blanket PPLs.
- However, when Candy is at a specialized performance location like the Crocodile or Key Area the venue is required by each PRO to pay for a blanket PPL, which would include any song by any artist that is publicly performed at that location. Therefore, Candy is in the clear.
2. “Pick Me” is also audio/video recorded at the events. If Candy wants to record the event and “Pick Me” is captured in any audio/video recording, then the clearances become more difficult. Whether Candy wishes to live-stream the event, use this footage in advertising, videos on social media, YouTube or on Candy’s website, Candy must obtain permission for both the composition and the recording.
- PPL. The venue PPLs described above are still required.
- Synch License. A “sync” license is needed to “sync” the song to the video, Candy must obtain this directly from the music publisher (who in turn may need to get the songwriter’s permission prior to agreeing to the use). This license covers the music composition.
- Master Use License. Candy must additionally obtain permission or a “master license” to use the specific recording from the record label (who in turn may need to get the artist’s permission prior to agreeing to the use).
- Beware! Regardless of the venue PPL, additional PPL’s are needed for use of both the song and the recording on radio, TV and online (“digital transmissions”). These are either obtained from the PROs, or negotiated directly with the publisher and/or record label as part of the synch/master licenses described above. Remember, the public performance at the event is different than a public performance on a website.
USE OF SONG/LYRICS FOR PROMOTION OF CANDIDATE: If Candy wants to use “Pick Me” or elements of the song in marketing and promotional materials, such as political ads and campaign slogans, Candy has even more matters to consider.
1. The artist’s recording of “Pick Me” used in marketing materials. The same permissions will be required as would be if Candy recorded the song at a live event.
- Sync License.
- Master License.
- PPL or equivalent permissions in the Sync/Master license.
2. Changing lyrics to “Pick Me” to criticize another candidate or pump up Candy’s campaign. Generally, this type of use is not protected under “Fair Use” and permission to use the lyrics are needed from the publisher/composer.
3. Using the “Pick Me” lyrics/song repeatedly – as a “theme” for Candy’s campaign. This is where we diverge from copyright law and add in additional potential liabilities for Candy under the right of publicity, defamation and false light claims. If Candy begins using any or all of “Pick Me” repeatedly, the risk of these causes of action rises because of the public association of the song with Candy and Candy’s political views.
These rights are determined on a state-by-state basis, so the analysis will depend on the laws of the state in which Candy is campaigning and liability could vary depending on where Candy is.
But, in a nutshell, here are some general rules of thumb:
- Right of Publicity: this protects the artist/songwriter’s exploitation of his/her name and likeness, which sometimes can extend to their creative work if it is associated closely with the artist/songwriter.
- False Light: this protects the artist/songwriter when information is published that places a person in a false light – so if the artist/songwriter fundamentally disagrees with Candy’s political views, and believes that the use of his/her work makes it seem like an endorsement, this would apply.
- Defamation: this is basically a blanket term for statements that hurt a person’s reputation. Written defamation is libel. Spoken defamation is slander. Defamation is a civil cause of action that an artist/songwriter could invoke if they believe that Candy’s use of the Song damages his/her reputation.
I’m sure that most political candidates are not fully aware of the complication of music rights and the potential for liability for using popular songs. Generally, even though a candidate loves an artist or a song, it doesn’t mean that the affection is mutual. Artist do have plenty of tools to stop candidates from “rocking.”