Can musicians really stop politicians from using their songs?

There are lots of stories in the news these days about musicians (mostly liberals) complaining about politicians (mostly conservative) using their songs in their campaign events, and how the musicians don’t want their songs used in that way. But… do they really get a say? I always thought that once you publish a song, and register it with an outfit like ASCAP or BMI or whatever, you pretty much have given anyone (who is willing to pay the royalties) the right to use it. Am I wrong? Or have things changed? Or are the musicians just grandstanding?

A couple of cites:

Here’s my understanding of it. Keep in mind I’m an engineer, not a lawyer.

This is actually an interesting legal question because no politician has ever told a musician to go stuff it after a musician has complained about the use of their song. At first glance, it would seem that the musician doesn’t have any say in the matter, since as you pointed out, the politician has obtained all of the necessary rights legally.

However, it turns out that there are some potential options for the musician. Poking around online, there’s a thing called the Lanham Act, which deals with trademark confusion, that the musician can use against the politician. There’s also a thing called false endorsement, where the musician can claim that the use of the song implies an endorsement where no such endorsement exists. The musician can also claim that this is using their public persona in an unauthorized manner, since people will associate the song with the artist who created it.

The thing is, no politician has ever been stupid enough to tell the musician to go stuff it, so no one is really sure exactly how this would play out in court. There are no legal precedents for it. There seems to be a common belief that the legal advantage would go to the musician, but since this has never been legally challenged, no one really knows for sure if that is true or not.

From a practical matter, it would be incredibly stupid for a politician to tell the musician to go stuff it. Musicians tend to be famous because they are very charismatic, and the last thing the politician needs to do is make an enemy out of someone who is charismatic, extremely effective at expressing their thoughts and emotions, and has frequent access to a public microphone, and whose vocal objections to the politician would make for an excellent news story. Even if the politician wins the legal battle, they are going to come off as an oppressive a-hole while the musician comes off as the innocent victim. I suspect that it would do a lot of damage to the politician’s campaign while giving the musician’s career a nice boost.

One correction: You have not given anyone who is willing to pay the royalties permission to use the song. You are giving anyone who has actually obtained a license and paid the royalties permission to use the song.

The order is important. A politician can’t first use the song and then tell his secretary to remember to send ASCAP a nickle in the morning. They first have to obtain permission and then use the song.

And no one is obligated to grant them a license.

Now, if the politician wants to set up a stage in front of a courthouse and gets a blanket license from a PRO (Performance Rights Organization), they can pretty much play anything they want from the PRO’s catalog. The songwriter won’t have a copyright claim against them. I don’t know how fussy the PROs are about granting licenses in such situations.

On the other hand, if a campaign rents a theater that already has all the appropriate licenses and then plays a licensed song, again there is nothing a songwriter can do under copyright law.

By the way, only the songwriter has performance rights. In the US, there are no performance rights for sound recordings, except for certain digital media. So, if A writes a song and B records a CD of that song, you have to pay A to play it in public but B doesn’t get a cent and doesn’t have any say in whether you can play his CD (except over the internet or via subscription satellite services).

In the articles you cited, I have no idea if the politicians bothered to get licenses before playing the songs or whether they played them in licensed venues.

So the musicians have mostly appealed to the court of public opinion and invented novel theories on non-copyright grounds. For example Rush the band has trademarked their name. Rush Limbaugh was playing their song on the radio. Rush the band claimed that Rush Limbaugh was violating their “Rush” trademark. They also claimed that Rush the radio host was implying a false endorsement. And, finally, the made the very dubious claim that although Rush Limbaugh had the proper licenses, the licenses did not cover “political purposes.”

Many venues pay ASCAP/BMI licensing fees that allows the performance of most if not all popular songs by anyone there. If these events happen at such venues, no prior notice or request by the campaign is required. My guess is that the musicians are SOL legally.

This is a fake news site, barely qualifying as satire. (Unless you believe that Donald Trump really is going to fight a bear in Mexico.)

Oh, spit. They fooled me.

This goes way back. I can remember the Reagan campaign in 1984 using Bruce Springsteen’s “Born In The U.S.A.,” which is actually a dark, bitter song about what shitty care we were taking of our Vietnam veterans. (I believe John Mellencamp’s “Pink Houses,” with its ‘Ain’t That America’ refrain, made an appearance as well, even though it’s similarly non-rah-rah-American.) To my knowledge, Bruce didn’t threaten any legal action over what he termed “The Republican Party’s attempts to co-opt anything in the culture that seemed really American that year,” he simply, and sensibly pointed out:

  1. That he didn’t like his song being used by Reagan;
  2. That Bruce himself was certainly not going to vote for the guy; and
  3. That someone at Reagan’s campaign HQ really ought to listen to lyrics.

It depends on the specifics of an artist’s contract with their publisher, but the short answer is that only a tiny handful of very top artists ever have any direct veto power in deciding what their songs do or do not get used for. Hell, even Paul McCartney couldn’t stop Michael Jackson from selling sneakers with Beatles songs…

Of course musicians can use politician’s names without permission.

Once upon a time the now-aging hippies thought their musicians could change American politics. Time to try again?

You can indeed play any song you like in a venue that has paid the ASCAP fees. No permission is required, since most venues get blanket fees.

However, there are two issues. First, the song is promoting the candidate. That means it can be considered a form of advertising. You cannot use a song in an advertisement without express permission of the artist. I don’t know if that’s actually been tested in court, but the songwriter certainly has a potential case. You could play the song as a warm up, but to use it to introduce a candidate would probably make it be an advertisement.

Also, the point of the song is to attract people who like the song. If those people admire the artist, and the artist says he doesn’t want his song used, it’s bad press.

I don’t think that you can say this about all instances. Sometimes the songs are used to play the part of the “choir” to make the moment resonate for the already-converted “parishioners”.