Playing music during political campaign events can create atmosphere, energize the crowd and highlight key moments. However, recording artists and songwriters frequently object to the use of their music by particular campaigns. Just recently, the White Stripes filed a complaint against Donald Trump’s unauthorized use of their signature song “Seven Nation Army” in a promotional video his team posted to social media. During the 2020 campaign, Neil Young sued Donald Trump for using the songs “Rockin’ in the Free World” and “Devil’s Sidewalk.” Other musical artists who have publicly objected to the use of their music include Celine Dion, Pharrell Williams, Adele, and the estates of Tom Petty and Prince. With the next election only a few months away, read on for a primer on the key legal issues.
One of the main grounds for objection is, of course, copyright. In response, some political campaigns have asserted that they don’t need specific copyright permission because the use is protected by the venue’s license from a performing rights organization (PRO), such as ASCAP or BMI. PROs offer blanket licenses permitting public performance of their repertories in exchange for license fees. Venues of all kinds use PRO licenses: retail, cruise lines, hotels, airports, arenas, and convention centers. According to ASCAP and BMI, political campaigns cannot rely on a venue’s blanket license because, as a general rule, such licenses exclude music used during campaign events. Instead, both BMI and ASCAP offer specific licenses for political campaigns.
To prevent their songs from being played at political events that they do not support, artists and songwriters may ask the PROs to withdraw their songs from a political campaign’s license. Although some argue such song withdrawals violate the nondiscrimination provisions of the Consent Decrees that ASCAP and BMI entered to resolve antitrust claims, the PROs permit withdrawal by artists and will honor their requests.
Even when a political campaign obtains a public performance license, artists and songwriters may object on other grounds including right of publicity, trademark dilution, and false endorsement. ASCAP recommends that in addition to obtaining a political campaign license, campaigns also obtain direct permission from songwriter or publisher, the performer or their management, and the record label that owns the sound recording. These issues were highlighted in 2020, when Aerosmith, Fall Out Boy, and Linkin Park joined over fifty artists by signing a letter from the Artist Rights Alliance urging political campaigns to directly seek the consent of recording artists, songwriters and copyright owners before using their music.
Until the courts provide more clarity, use of music without permission will likely remain a perennial campaign issue.
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Nancy J. Mertzel
Mertzel Law PLLC
1204 Broadway, 4th Floor, New York, NY, 10001
(646) 965-6900
Offices in New York and New Jersey
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