# Is permission required from musicians for political rallies? **URL:** \ **Category:** Factual Questions\ **Created:** [July 26, 2016, 7:36pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968 "2016-07-26T19:36:38Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Alzarian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@Alzarian](https://boards.straightdope.com/u/Alzarian)\ **Post date:** [July 26, 2016, 7:36pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/1 "2016-07-26T19:36:38Z")
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? ---
**Author:** ![engineer\_comp\_geek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/engineer_comp_geek/32/504_2.png) [@engineer\_comp\_geek](https://boards.straightdope.com/u/engineer_comp_geek)\ **Post date:** [July 26, 2016, 9:25pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/2 "2016-07-26T21:25:16Z")
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. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [July 26, 2016, 9:32pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/3 "2016-07-26T21:32:13Z")
> [@engineer\_comp\_geek](#): > > 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. Huckabee [just settled out of court](http://money.cnn.com/2016/06/27/news/mike-huckabee-eye-of-the-tiger/)(he was sued) with Survivor for his use of “Eye Of The Tiger”. The best part: > [@](#): > > They settled out of court, and it came to light when Huckabee listed the $25,000 cost as a campaign expense on federal election records. A payment to Rude Music is listed as a “legal settlement” for “copyright infringement.” > > Huckabee paid half of it in May and listed the $12,500 payment as an “itemized disbursement.” He listed the other half as “debts and obligations.” Both appear on a June 20 filing. I think there have been a few other out of court settlements. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [July 26, 2016, 9:32pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/4 "2016-07-26T21:32:13Z")
They may not be able to stop it ahead of time, but [they probably have a case](http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1224&context=articles) if they complain. > [@](#): > > In the United States, the right of publicity protects a celebrity from misappropriation of her name or likeness for commercial purposes. The right of publicity has also been used by performers to protect their performances. In states that recognize the right of publicity, performers have a tool that will allow some of them to prevent the unauthorized commercial exploitation of their unfixed performances, either by reproduction or broadcast communication. Indeed, performers have succeeded in some courts in recovering not only for unauthorized use of their performances but also for unauthorized imitation of their performances. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [July 26, 2016, 9:36pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/5 "2016-07-26T21:36:47Z")
> [@running\_coach](#): > > Huckabee [just settled out of court](http://money.cnn.com/2016/06/27/news/mike-huckabee-eye-of-the-tiger/)(he was sued) with Survivor for his use of “Eye Of The Tiger”. > > The best part: > I think there have been a few other out of court settlements. It actually did make it to court. > [@](#): > > In court, Huckabee argued that the anti-gay-rights rally was a “religious assembly… signifying joy and praise at the release of Mrs. Davis” from jail. A religious event would classify the act of playing the song as “noncommercial” and allow him to cite “fair use” – letting him play part of the song without paying for it. > > But that argument fell apart when the songwriter’s lawyer pointed out that Huckabee claimed the rally as a presidential campaign expense. > > He is now petitioning the Federal Election Commission to let him start a separate legal defense fund to pay off the settlement. However, the FEC just issued a draft opinion last week saying Huckabee should pay the costs himself. The article notes that Gingrich was also sued in 2012 for using the same song. ---
**Author:** ![Ionizer](https://avatars.discourse-cdn.com/v4/letter/i/5daacb/32.png) [@Ionizer](https://boards.straightdope.com/u/Ionizer)\ **Post date:** [July 26, 2016, 9:52pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/6 "2016-07-26T21:52:40Z")
(IANAL) Yes, artist(s) can, and do, stop it via a cease & desist and/or court-injunction. [Here’s a good write-up/history](http://lawstreetmedia.com/issues/politics/campaign-music-fair-use/) 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](http://www.hollywoodreporter.com/thr-esq/newt-gingrich-eye-of-tiger-lawsuit-285913) to a 2012 article regarding Newt Gingrich doing such. [This link](http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf) (pdf from ASCAP, representing over a half-million musicians) gives guidelines for what politicians, in general, must do to legally use an artist/group’s work in politics. Pretty specific guidelines for legalities, etc. [At least two artists have sued and settled out of court for undisclosed sums (Jackson Browne and also David Byrne (of Talking Heads))](http://www.npr.org/sections/therecord/2012/02/29/147592568/music-in-political-campaigns-101) 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 ---
**Author:** ![Ionizer](https://avatars.discourse-cdn.com/v4/letter/i/5daacb/32.png) [@Ionizer](https://boards.straightdope.com/u/Ionizer)\ **Post date:** [July 26, 2016, 10:01pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/7 "2016-07-26T22:01:41Z")
> [@engineer\_comp\_geek](#): > > …snipped… > > 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. 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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 26, 2016, 10:11pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/8 "2016-07-26T22:11:57Z")
This is actually a pretty complex issue. 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. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [July 26, 2016, 10:22pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/9 "2016-07-26T22:22:20Z")
> [@Acsenray](#): > > This is actually a pretty complex issue. > > It seems that for events, if the venue has a blanket license then it’s covered. 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. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [July 26, 2016, 10:36pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/10 "2016-07-26T22:36:31Z")
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. > [@Ionizer](#): > > (IANAL) Yes, artist(s) can, and do, stop it via a cease & desist and/or court-injunction. [Here’s a good write-up/history](http://lawstreetmedia.com/issues/politics/campaign-music-fair-use/) on it (appears to be valid, IMHO). 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.” > [@](#): > > 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](http://www.hollywoodreporter.com/thr-esq/newt-gingrich-eye-of-tiger-lawsuit-285913) to a 2012 article regarding Newt Gingrich doing such. The article specifically says “But all of these cases involved campaign advertisements, not political rallies.” > [@](#): > > [This link](http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf) (pdf from ASCAP, representing over a half-million musicians) Just to clarify, the linked file says they represent 525,000 “composers and songwriters” > [@](#): > > gives guidelines for what politicians, in general, must do to legally use an artist/group’s work in politics. Pretty specific guidelines for legalities, etc. 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 > [@](#): > > [At least two artists have sued and settled out of court for undisclosed sums (Jackson Browne and also David Byrne (of Talking Heads))](http://www.npr.org/sections/therecord/2012/02/29/147592568/music-in-political-campaigns-101) Both examples cited in that article were suits for unauthorized use of music in campaign commercials. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [July 26, 2016, 10:47pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/11 "2016-07-26T22:47:16Z")
> [@Acsenray](#): > > 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. 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. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [July 26, 2016, 11:01pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/12 "2016-07-26T23:01:35Z")
> [@Alley\_Dweller](#): > > 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. [From ASCAP](http://www.ascap.com/about/legislation/advocacy-resources/using-music-in-political-campaigns-what-you-should-know.aspx). Non-PDF version of **Ionizer’s** link. > [@](#): > > Q: If musical performances at campaign events are properly licensed, can the campaign still be criticized or even sued by an artist for playing his or her song at an event? > A: Yes. If an artist does not want his or her music to be associated with the campaign, he or she may be able to take legal action even if the campaign has the appropriate copyright licenses. While the campaign would be in compliance with copyright law for playing the music, it could potentially be in violation of other laws. Specifically, the campaign could be liable under any of the following claims: > > 1. “Right of Publicity”, which in many states provides image protection for famous people or artists. > > 2. The “Lanham Act”, which covers the confusion or dilution of a trademark (such as a band or artist name) through its unauthorized use. > > 3. “False Endorsement” where use of the artist’s identifying work implies that the artist supports a product or candidate. > > As a general rule, a campaign should be aware that, in most cases, the more closely a song is tied to the “image” or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song’s usage in the campaign. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [July 26, 2016, 11:14pm UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/13 "2016-07-26T23:14:09Z")
> [@running\_coach](#): > > [From ASCAP](http://www.ascap.com/about/legislation/advocacy-resources/using-music-in-political-campaigns-what-you-should-know.aspx). Non-PDF version of **Ionizer’s** link. 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.” ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2016, 1:00am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/14 "2016-07-27T01:00:07Z")
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. I don’t see a violation. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 27, 2016, 1:13am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/15 "2016-07-27T01:13:39Z")
I was going to reply in detail, but Alley Dweller covered it. That’s a list of legal theories that haven’t been tested in court. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 27, 2016, 1:23am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/16 "2016-07-27T01:23:21Z")
> [@UltraVires](#): > > 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. 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. > [@](#): > > 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. > > I don’t see a violation. 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. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [July 27, 2016, 1:48am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/17 "2016-07-27T01:48:50Z")
Slight tangent: 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. \* ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 27, 2016, 2:13am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/18 "2016-07-27T02:13:42Z")
> [@bordelond](#): > > Slight tangent: > > 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. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 27, 2016, 3:12am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/19 "2016-07-27T03:12:42Z")
> [@kunilou](#): > > They may not be able to stop it ahead of time, but [they probably have a case](http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1224&context=articles) if they complain. The article refers only to commercial use ---
**Author:** ![Ionizer](https://avatars.discourse-cdn.com/v4/letter/i/5daacb/32.png) [@Ionizer](https://boards.straightdope.com/u/Ionizer)\ **Post date:** [July 27, 2016, 3:21am UTC](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968/20 "2016-07-27T03:21:12Z")
And then there’s the [RIAA summation](http://www.riaa.com/resources-learning/for-political-campaigns/) 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. [Next page](https://boards.straightdope.com/t/is-permission-required-from-musicians-for-political-rallies/760968.md?page=2)