Intellectual Property Attorney

Political Candidates: Play That Funky Music – But Be Prepared To Stop

As reported by Breitbart, a cavalcade of musicians have come forward in recent months to protest the unauthorized use of their songs by Presidential candidate Donald Trump. The Rolling Stones, Neil Young, Queen, R.E.M., Steven Tyler of Aerosmith and the Estate of George Harrison are but a few of the artists that have raised objections. Can these artists, however, force Donald Trump to stop? And does playing recorded music at campaign rallies without permission violate intellectual property laws?

As a preliminary matter, it is clear that an artist who writes a song or a piece of music has copyright rights in his or her work provided that such rights have not been assigned to a third party. This is true regardless of whether the artist has taken the additional prudent step to obtain a copyright registration covering his or her work. Among these rights is the right to perform the copyrighted work publically, which includes playing a recorded song at a public event such as a campaign rally. Doing so without appropriate permissions and/or licenses therefore may constitute copyright infringement, particularly where this is done for profit.

It is possible, however, to obtain a “blanket license” from organizations such as ASCAP and BMI, which grant licenses for the public performance right of the songs in their respective catalogs. If such a “blanket license” is obtained (for a fee of course), then the licensee is free to play songs covered by the license in public without running afoul of copyright law. Often public places, such as arenas and conference centers, will maintain such blanket licenses as a matter of course. According to ASCAP, however, blanket licenses for such public places often contain language excluding performances during conventions, expositions or campaign events.

The rock band Queen recently objected to Donald Trump’s use of their song “We Are The Champions” at the Republican National Convention. As reported by Forbes, the Republican National Committee (“RNC”) had secured the necessary blanket licenses to play the song at the convention. BMI, however, acting at the request of Queen, subsequently requested that the RNC and the Trump campaign sign its “Political Entity” license, which allows the exclusion of any musical work from the license upon the request of the artist. According to Forbes, the RNC and the Trump campaign complied.

Importantly, a blanket license does not permit the licensee to use the copyrighted song in advertising (e.g., campaign commercials). For this, individual licenses from the rights holders are required (i.e., the artist and potentially any songwriters, publishers and/or record labels that control the rights).

It should be noted that even if appropriate blanket licenses are obtained, a user may still be subject to legal claims asserted by an artist. While a claim of copyright infringement would no longer be in play, an artist could potentially bring claims for violation of the artist’s right of publicity (if his or her name or image is used without consent), trademark claims (e.g., alleging dilution of the artist’s famous brand) and/or claims of false endorsement.

Given the possibility of such claims, and perhaps more importantly, the serious public relations backlash that a candidate may face if they continue to use a song contrary to the wishes of the artist, the best course of action (and one that most campaigns have adopted) is simply to cease use of a particular song when challenged.

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