Can musicians and artists legally demand that politicians not use their works?

Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.[1]

Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:

Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?

The answer, like most legal questions, is: “well, it is not that simple. Maybe.”

There are a multitude of issues that arise for choosing and using particular songs in association with a political campaign. The most obvious issue is whether the unauthorized use of a song by Trump is copyright infringement. Alas, that question alone is not dispositive, nor does it provide general guidance to future wannabe Presidents. There are also issues of licensing and permission. There are issues of trademark rights and publicity rights. There are potential contractual issues. And that only begins to address the issue of “fair use.” Meanwhile, even if all of those issues are addressed, the artist may still claim some form of hybrid Lanham Act or “false sponsorship” or “false endorsement” claim under federal law. The Rolling Stones are not the only high-profile musical act that vigorously protects its image.

After all, this is a legal issue that has existed for over 30 years, yet there still is no clear answer.

Copyright Infringement?

Yes, musical works of art are subject to copyright protection. Even if a potential government employee seeks to use it. Of course, there are a few more specific areas to address underneath the larger umbrella of “copyright” issues. First, there are multiple copyrights within a single song.[2] The sound recording itself is copyrighted. The underlying musical composition is another separate copyright. Often the sound recording copyright is owned by the record company, while the songwriter may own the composition (though this may often be assigned to the record company, too). Assuming fair use is not an option, a separate license must usually be acquired before a sound recording can be used by a third-party. The failure to acquire a license will often result in an infringement claim from the copyright owner. Just ask former Florida Governor Charlie Crist, who had to pay David Byrne a hefty sum in settlement after improperly using a Talking Heads song in commercials during a U.S. Senate campaign in 2010. Nevertheless, based on the fact that artists may not own all of the copyrights in their own works, getting the artist’s permission may in limited instances be irrelevant to the copyright analysis.

There is also the issue of public performances. Many of these so-called campaign songs are used or played at rallies or conventions or large gatherings. This type of use is called a “public performance”[3] under copyright law and the requisite license is required. These licenses are often governed by a performing rights society organization, such as ASCAP, BMI, or SESAC. ASCAP has even provided guidelines for licensing music in political campaigns.

Politicians do not just use songs at public events, however. They are often used in advertisements and promotional videos. The use of a sound recording in a video requires what is known as a “sync” license, as it includes rights to multiple copyrights in an audio-visual presentation. The use of songs in negative or attack-based campaign advertisements is its own mess of legal issues and the personal politics of the artist. Just ask Cyndi Lauper about the proper use of “True Colors.” Nothing is ever clear-cut in politics, including copyrights.

What about Fair Use?

Any time a copyright issue comes up, the most popular question is “does fair use apply?” It is a valid question, especially in instances where the third-party cannot acquire the artist’s permission to use the musical work(s) in question. Fair use may only apply in limited instances for purposes of “criticism, comment, news reporting, teaching… scholarship, or research.”[4] The use must also be “transformative” to accomplish one of these goals. In the context of a political campaign, this is usually accomplished through commentary or parody. For example, Donald Trump’s use of the Rolling Stones’ “Start Me Up” is primarily for the purpose of hyping up the crowd or setting the tone for his appearance. It is not a commentary on his political positions or the like. This would most likely undermine any claims for “fair use” of a copyrighted work.

In short, political campaigns rarely can rely on “fair use” as a basis for using a particular song if/when an artist objects to the politician or the message being conveyed through the song.

Licensing?

 In instances where the artist’s permission is acquired or not needed, a political campaign likely needs to acquire license rights to the song. As mentioned above – ASCAP, BMI, and SESAC exist to provide public performance rights. But there are typically no blanket one-size-fits-all type licenses that a campaign can acquire. It must be often done piecemeal to be done correctly. The campaign may also need to acquire a license from the publisher and the record label for various “use” licenses. Any campaign video will require a “sync” license. Any media entity that transmits or publishes a campaign video using a copyrighted work will also need to acquire license rights from the owner. ASCAP and BMI have existing agreements with labels and artists to pay royalties from these various uses. Though it is also important to note that BMI has contract provisions with some of its artists which may grant those artists the right to deny permission for political uses. This impacts the standard rights license, too. Thus, even when Donald Trump thinks he might have taken all of the necessary steps to acquire and use a song by Adele – Adele may hold veto power. A trick the Donald will need to learn if he actually becomes President.

When Can an Artist Invoke Publicity Rights?

 Politics is an inherently divisive medium. Artists often do not agree with politicians or their positions on the issues. When the politician uses that artist’s music as part of a campaign, the artist may object on moral grounds and fear the existence of a false sponsorship. Scott Walker can attest to the visceral reaction an artist may have when music is appropriated by a large campaign without permission. After using a Dropkick Murphys song last year, the Walker campaign was quickly and publicly rebuffed by the band:

But assuming the Walker campaign acquired all of the necessary licenses, did the band have any legal right to make this demand as a violation of their “right of publicity”? Maybe. The “right of publicity” is a common law right that can vary wildly from state to state. It is derived from the right to privacy and can extent to the use of recognizable voices, including in music.[5] As of today, the right of publicity has not successfully been invoked against a political campaign in the context of unauthorized song uses. Nevertheless, the right exists to protect against the commercial exploitation of a person’s name, image or persona.

While there has not been an actual “publicity rights” case on this issue, the first one would be an interesting test case for the viability of publicity rights in the political arena.

Lanham Act Claims? False Sponsorship or Association?

Even if the artist lacks ownership of the copyrights and does not have a basis for asserting publicity rights, there may be a backup claim to rely on. The Lanham Act. In essence, the artist would claim that their music is their trademark and the Lanham Act operates to protect the infringement of this trademark. To the artist, the image truly is their trademark and the unauthorized use of a song by a politician may violate this mark.

The Lanham Act, 15 U.S.C. § 1051 et seq., provides a series of rights concerning trademarks and consumer protections. This includes claims of false advertising, false sponsorship or association, and even “dilution” of famous marks. To the extent a musician can attest that the relevant public would be confused by a politician’s use of the artist’s songs in a manner that would imply sponsorship or association, there may be a viable cause of action against the campaign.

The actual language of the Lanham Act “false designation” provision is as follows:

(1)       Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A)       is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B)       in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.[6]

An artist may have a strong claim to violations of the “affiliation, connection, or association of such person with another person” language. The artist would need to prove that the relevant consumers of the music would perceive the relationship between the artist and the politician in a way that negatively affects that artist’s music sales or commercial impression in the relevant market. This has been the crux of many claims by artists against politicians – they do not want to be affiliated with individuals that consider to be vile or dishonest.

Don Henley may be the most commonly-cited example of an artist using the Lanham Act to object to political uses of his music. In that case, the political campaign re-recorded a Don Henley song but purportedly gave the impression that the musician in the recording was still Don Henley. The Henley court held that a performer can state a Lanham Act claim when another person imitates their performance such that consumers would believe that the musician was actually performing on the advertisement.[7] While Henley lost the case based on a lack of evidence of likelihood of confusion, the standard remains and the Lanham Act can be a proper claim if there is evidence to support such confusion. The Henley case could likewise be seen as a gateway to other types of false advertising or sponsorship claims. The hurdle, however, is submitting proof of actual harm in the marketplace.

For example, while the Rolling Stones may believe their image and reputation is harmed by any association with Donald Trump (or any other politician), to successfully plead a claim under the Lanham Act, they would need to submit actual proof of confusion or economic harm. Not surprisingly, most music fans can conceptually separate the artist’s music from the artist’s political affiliations, whether real or perceived.

Conclusions?

In the end, the answer remains “it depends.” Politicians continue to use music in conjunction with their campaigns. Artists continue to object. Every use remains a case-by-case analysis of the assortment of the copyright, trademark, publicity rights and other legal issues addressed herein. Though a political campaign would be wise to make every effort to first obtain permission from the artist and the record label before becoming wedded to a particular song, no matter how thematic or how much that politician personally identifies with the message.

[1] The irony being that “Born in the U.S.A.” is a protest song and Reagan was most decidedly not using it for the underlying message it conveys.

[2] 17 U.S.C. § 102.

[3] 17 U.S.C. § 101.

[4] 17 U.S.C. § 107.

[5] See Midler v. Ford, 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, 978 F.2d 1093 (9th Cir. 1992).

[6] 15 U.S.C. § 1125(a), also known as Lanham Act § 43(a).

[7] Henley v. DeVore, 733 F. Supp. 2d 1144, 1167-68 (C.D. Cal. 2010) (Henley lost on summary judgment, however, because the court found no evidence of a likelihood of confusion by viewers).