It seems that whenever a political campaign plays music at a rally, you hear from the artist seeking that it stop, particularly if the views of the politician are not shared by the artist.
While I get the desire for an artist to call out a politician when they use their music… I have doubts as to whether the artist has any legal leg to stand on.
After all, a political rally usually doesn’t involve admission, so there is no profit being made, and while it may get free broadcast on the news networks or C-Span… they can broadcast these songs because they are covering a news event.
So, while musicians will continue to complain if their music is played in conjunction with a candidate they don’t support - they can’t really stop them… can they?
I’m not a lawyer, but here’s my understanding of it.
At first glance, it looks like the artist is screwed. The politicians will usually pay whatever fees are required to ASCAP or BMI or whoever, and sometimes the location (convention hall or whatever) will already have a blanket agreement in place with folks like ASCAP or BMI so sometimes obtaining the rights is already done automatically. Since the politician has the proper rights, it’s pretty much an open and shut case.
However, there’s a legal gray area involved here. First, there’s the Lanham Act, which deals with trademark confusion. Second, there’s the legal concept of false endorsement. Most folks assume that if a politician uses a song, the artist supports the politician, thereby leading to false endorsement if the artist doesn’t actually support the politician.
The thing is, as far as I am aware, there hasn’t been a case where the artist has had to go to court to try either of these legal concepts out. Usually what happens is that the artist complains, the politician stops using that song, it maybe gets reported in the news, and that’s it. Again, I’m not a lawyer, but it’s my understanding that the legal experts tend to think that the artist would win if it ever went all the way to court. But, it’s never been proven out in court and nobody really knows for sure what would happen.
(IANAL) Yes, artist(s) can, and do, stop it via a cease & desist and/or court-injunction. Here’s a good write-up/history on it (appears to be valid, IMHO). I seem to recall a recent artist/band suing and winning damages, but the Google-fu is weak at the moment. Here’s a ‘weak-source’ link to a 2012 article regarding Newt Gingrich doing such.
I did notice that laws do vary a bit state to state, but in general, ya gotta get formal legal permission to not be on the wrong side of the law (if I am reading/understanding it properly anyways).
ETA - spent too much time Googling to get as specific as I could, darn it…but some different links anyways, LOL
My 3rd link states that Byrne and Browne both settled out of court, implying that there WERE lawsuits at that time. Just sayin’ and no biggie But yeah, multiple sites I reviewed say that no lawsuit has ever gone to a ‘final judement/ruling’, so to speak. Yet. But we are kinda saying the same thing overall, I guess.
It seems that for events, if the venue has a blanket license then it’s covered.
However, if we are talking about a commercial, then that can’t be obtained through a blanket license. You actually have to get permission.
As stated above, no one really knows what would happen if the false association claim actually made it as far as a ruling.
There have been several lawsuits and settlements, but that doesn’t tell you what the actual law is. So far as I know there aren’t a whole lot of actual court opinions in this area.
There’s also the issue of the difference between pre- and post-1972 sound recordings.
Pre-1972 recordings aren’t under federal copyright law. So that’s one of the few areas where state law can come into play in the copyright field. There are people out there arguing now that some states have a public performance right for pre-1972 sound recordings that aren’t covered by blanket licenses.
Read the PDF Ionizer linked to.
Political use is not because of implied endorsement/damage to artist reputation and a couple of other things come into play in political campaigns.
The OP specifically asked whether songs can be used at campaign rallies.
Your references are mainly to politicians being sued for using music is campaign commercials without permission or to politicians using music at unlicensed venues. Using music in campaign commercials (or any videos for that matter) is a completely different matter than using music in a live rally.
Of course, a cease & desist letter from a lawyer has no legal force. And I would like to see a specific example of a court injunction against using a song at a campaign rally, your reference does not list any. And, by the way, the author of the article lists his qualifications as “a graduate of the University of North Carolina at Chapel Hill having studied History and Peace, War, and Defense.”
The article specifically says “But all of these cases involved campaign advertisements, not political rallies.”
Just to clarify, the linked file says they represent 525,000 “composers and songwriters”
Not really. It states what that they may need to get additional licenses to use music in campagin commercials and that they must make sure they have a license for any venues where rallies are held. And finally it gives a CYA list of legal theories that performers may try to assert to stop their music from being played
Both examples cited in that article were suits for unauthorized use of music in campaign commercials.
Not disagreeing with anything you say, but just a little background information for people not familiar with the subject matter.
In the United States under federal copyright law, the performers who create musical recordings have NO performance rights, except for internet streaming and subscription satellite services. That means that the people who recorded the music have no copyright infringement claim no matter where you play their music (except internet and satellite). This is very different than in many other countries.
The composers/songwriters DO have performance rights. When you buy a license from ASCAP, the money goes to the composers/songwriters (or their publishers) and not to the performers.
And, as I said, “And finally it gives a CYA list of legal theories that performers may try to assert to stop their music from being played.”
That is a warning that they put in there so that if a musician is ever successful in using one of those legal theories, the licensee won’t sue ASCAP and claim they misrepresented the benefits of their license.
That paragraph has no legal force. Notice the weasel words “it could potentially.”
Is the use of the song even “in commerce”? No products are being sold. Is a service being sold? Nobody is being asked to buy anything. People are being asked to donate money or alternatively vote for the candidate, but I’m not seeing any commerce.
Further, I don’t believe it is reasonable for someone to assume that because I play a particular song that the performer endorses what I am saying.
There is reason to believe that a political campaign is a use in commerce. It’s not settled, but it’s not an easy win either way.
You personally might not, but musicians think they have good evidence to show that a significant proportion of the public does think that there is some kind of affiliation or sponsorship, or at the very least approval or consent. And they might have a pretty good argument given that if it’s a commercial, they actually do have to give consent. There is a real possibility of confusion. Which way this would actually tip I can’t say.
On the artist’s side, who has standing in these cases? The songwriter(s), the performing artist(s)*, a third-party rights-holder**? Some or all of the above?
** when different from the songwriter(s).
** for example, Michael Jackson at the time he owned the rights to much of the Beatles catalog. *
There are two copyright interests in a sound recording—the underlying musical composition and the sound recording itself. Each is initially owned by the author or authors but the rights can be transferred. To know who has standing for a particular claim you have to see who holds what rights at the time of the alleged infringement.
And then there’s the RIAA summation which more or less goes with what my general meaning is.
And to clarify, I consider songwriters/composers to fall under the ‘musician’ /artist titles. Feel free to separate the termages as desired. I went through college with a classmate who wrote a few quite notable songs for a few popular Austin, TX musicians/artists/bands. He and his professional cohorts mostly called themselves musical artists, fwiw. He did receive decent royalties off and on, but wanted out of that business due to how some of his stuff was used later and him not wanting to bother with lawyers.
As far as injunctions, Huckakabee’s campaign was facing one before things were settled prior to it being needed, as indicated already. So, already cited as far as I am concerned.
But yeah, multiple sites I reviewed say that no lawsuit has ever gone to a ‘final judement/ruling’, so to speak. Yet. But we are kinda saying the same thing overall, I guess.