President Donald Trump and numerous other politicians have been warned by multiple musicians to stop using their music at rallies, in videos and in campaign advertising. The question is, do politicians have the legal right to play the songs? The answer is not clear cut.
Artists rarely have full control over where and when their music can be played. The writer or writers of a song automatically receive copyright for their original creation, and U.S. copyright statutes prohibit the dissemination of copyrighted work online without permission. If a politician uses a song in an online video without approval, the copyright holder(s) can file for a copyright violation.
If a song is played in a public venue like a stadium or arena that has a public performance license, no permission is needed. The license is typically granted through a songwriters’ association like the American Society of Composers, Authors, and Publishers (ASCAP) or Broadcast Music, Inc. (BMI). Even so, ASCAP recommends that political campaigns seek permission from the musicians or songwriters, as these licenses exclude music played during conventions or campaign events.
The need for permission to play a song in a public venue often depends on the circumstances. For instance, a DJ at a wedding or a sports arena can play songs without fear of legal consequences. One reason for this is that many artists consider their music being played at a wedding or sporting event a form of free publicity. In the world of politics, however, campaigns and rallies that rely on music to stir up crowds often come under fire for unauthorized use. This typically happens when an artist has differing political beliefs than the candidate using their music, and becomes concerned that use of their material might be seen as an endorsement.
Sometimes political candidates neglect to contact songwriters when choosing campaign songs. This has resulted in embarrassing situations, such as when Bruce Springsteen famously reprimanded President Ronald Reagan for planning to install “Born in the U.S.A.” as a backdrop for his reelection campaign in 1984. In 2015, Neil Young publicly criticized then-candidate Trump for using “Rockin’ in the Free World” at his rallies.
However, savvy campaign managers typically purchase the rights to play music in public for their events. These licenses grant broad access to thousands of songs which a politician can use at rallies and conventions, as long as the music is not used digitally without permission. If an artist's song is part of the licensing agreement and is played at a campaign event, they have traditionally had little legal recourse outside of sending a cease and desist letter.
An artist who wants to take matters further to prevent the use of their music at political rallies may object on the basis of their Right of Publicity – a legal argument that covers how their image is portrayed. They can make the assertion that use of their work infringes on their right to not be associated with a subject they find objectionable.
Arguments also can be raised through the Lanham Act, the law governing trademarks. Under the Lanham Act, trademark infringement can occur if the use of a song by a politician is likely to create confusion in the marketplace that the musician endorses the politician, especially if this association harms the musician’s reputation. Aerosmith’s Steven Tyler was successful in getting Trump events to agree to stop using the band’s music when his attorney argued that the use of her client's music at Trump rallies gave consumers the false impression that Tyler supported Trump. Representatives for the singer Rihanna used similar methods to prevent Trump from using her music.
Whether due to campaign negligence or political calculation, the impact of unauthorized use can be damaging to a songwriter – but it is not always advisable to take legal action. A contentious legal confrontation can often result in more publicity for the politician than if a musician simply let the campaign continue uninterrupted.
For recording artists who feel strongly about distancing themselves from a message they disagree with, legal action may be key to keeping politicians from using their music. If you have questions or concerns about the unauthorized use of your music, please contact us at 973.707.3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.