With the upcoming November elections less than two months away, I thought it would be a good idea to answer this question. After all, music has the unique ability to energize, inspire and motivate a crowded convention hall and campaign. Political candidates know this and the smart ones also know that music is protected by copyright laws. Truth be told, many politicians and their teams just don’t care.
During the 2016 Presidential election, the estate of George Harrison tweeted out, “The unauthorized use of #HereComestheSun at the #RNCinCLE is offensive & against the wishes of the George Harrison estate.”
The day before the Republican National Convention started, the band Queen protested Trump’s “unauthorized use” of “We Are the Champions.”
The Rolling Stones, Aerosmith, R.E.M. and Neil Young have also demanded that Trump stop playing their music at his rallies. In response, Trump looked the other way and blasted out “You Can’t Always Get What you Want” by the Rolling Stones after his next speech.
Regardless of your political persuasion, favorite band or song, what’s the deal? Do political campaigns have the right to play songs without the permission of the artist?
My short answer is probably not.
Music is copyrighted, and a proper license is normally required to play a band’s music. If you don’t have permission from the artist or management company, then you may be in copyright violation. An exception might include a politician playing a song from the convention hall’s catalog of licensed music.
Another little know fact is that if a stadium, arena or venue has a public-performance license through ASCAP or BMI (songwriters’ associations), it may be legally OK to play that song during a political campaign.
In addition to copyright issues, there’s also a valuable “right of publicity” asset that a musical artist may be able to protect. Under this theory, Mick Jagger, of the Rolling Stones would argue his voice being broadcasted at a political convention is part of his image, and only he has the right to benefit from that image. This is an area of law that is generally untested in the courts but, it appears to me that artists would be on strong legal grounds should they decide to hold offending political candidates liable under this theory.
Other legal arguments musical artists, bands, and right holders may assert include violations of the “Lanham Act” (confusion or dilution of a trademark through unauthorized use) and “False Endorsement” (implies that the artist supports a product or candidate).
In my opinion, the best legal and ethical way for political campaigns and candidates to acquire the rights to use a particular song or list of songs at a convention is to obtain written permission from the artist or management company via a limited license. This avoids all of the above problems including litigation and legal damages. Written permission also prevents misunderstands with the community’s perception as to which artist or band supports a particular candidate.
When all said and done, getting written permission is just the right thing to do.
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Attorneys Joey Vitale and Mitch Jackson answer this question and more on this Wednesday’s LegalHour.live (live video show) 11 am PT | 2 pm ET.
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The rights and liberties our ancestors fought and died for (civil rights, due process and equal protection) are now, for the most part, thought less about by most Americans than the big question concerning who is going to be sent home on the next “Survivor” television show? More people know the names of the “OC Housewives” or “Bachelor” contestants than the names of our U.S. Supreme Court justices. This isn’t OK and I need to get this off my chest.
