Music

Music in Politics – Legal and Practical Considerations

American flag
Written by David Switzer

After riding down an escalator into a room full of people waving banners with name, Donald Trump announced his campaign for Presidency by taking the stage to “Rockin’ in the Free World.”  Welcome to campaign season.  The 2016 Presidential election is (a little bit further than) just around the corner, and the majority of candidates, including Republican candidate Donald Trump, have announced their candidacy with a fanfare of popular, “all-American” songs.  Unfortunately for Trump, Neil Young, the songwriter behind “Rockin’ in the Free World,” is not voting for Trump, and does not want Trump using his hit song.

Trump and Young’s situation is hardly novel.  Each campaign season, without fail, a political candidate uses a popular song to demonstrate their unyielding patriotism, and then the artist or songwriter behind that song gets upset that their music was used in the campaign without the artist’s (or songwriter’s) permission.  Besides Trump, a few notable examples are: Sarah Palin used Heart’s “Barracuda,” Mitt Romney used K’Naan’s “Wavin’ Flag,” John McCain used “Running On Empty” in a political commercial, and Scott Walker used The Drop Kick Murphys’ “I’m Shipping Up to Boston,” all without the bands permission.

Presuming that everyone involved in the above campaigns is not completely unaware of music laws and artists’ rights, many of these politicians must clearly believe they have the right to play the music as part of their campaigns.  So what rights does a politician actually need to get, if any, from an artist or songwriter to play their music?  Does an artist or songwriter have any recourse if their song is used without their permission?  The answer to these questions depends on the particular facts of each situation.

Trump’s Presidential candidacy announcement garnered a lot of press regarding his use of Young’s song because Trump is a controversial conservative running for the Republican nomination, and Young is a well-known liberal who actually supports Bernie Sanders, a Democratic Presidential candidate.  According to the reported facts, Trump came out onto the stage while the song was playing in the background at his campaign event.  Later, Young publicly announced that “Donald Trump’s use of “Rockin’ in the Free World” was not authorized.

Under these facts, what rights would Trump need to have in order to legally play the song at his campaign event?

Music is governed by copyright law, and the type of license Trump would need for his campaign is a public performance license, which can be obtained from one of four U.S. performing rights societies, and does not require the direct permission of the publisher or songwriter.  The recording artist’s permission would not be required because there is currently no federal public performance right for recorded music.  This is different than John McCain’s use, where the GOP eventually had to pay out a settlement for that unauthorized use, because to play a song in a political commercial on TV McCain also need to obtain both a synchronization and master-use license from the music publisher and record label respectively.

In this case, Trump was only required to obtain a public performance license.  According to his campaign, Trump paid for and legally obtained the proper performing rights license from ASCAP, Young’s performing rights society.  So in this case, at least under copyright law, it appears Trump was authorized to play Young’s “Rockin’ in the Free World.”

However, the interesting question still remains, is Young afforded any other legal protections outside of copyright law?

ASCAP recommends that while a campaign may have the appropriate copyright licenses, a politician should still receive permission from the artist in order to avoid any potential claims for violations of the artist’s “right of publicity,” which provide protections to the image of famous persons.  “The Lanham Act,” protects against any unauthorized use of a trademark,  an artist’s name in order to prevent confusion or dilution of said trademark, or “False Endorsement,” which is where an artist is implied to support a certain candidate due to their song being used by a certain campaign.  (Note that the above legal protections may be available for the song artist, but probably not the songwriter unless the writer is the artist.  The rationale goes that because an artist is the one performing the song he or she is presumably more closely associated with a song, or at least a particular recorded performance of that song).

In K’Naan’s case, when Romney used his hit song “Wavin’ Flag,” K’Naan received floods of tweets and emails from fans who could not believe he supported Mitt Romney.  In return, K’Naan said “I’m for immigrants, I’m for poor people, and they don’t seem to be what he’s endorsing.  My song being his victory song didn’t seem quite right.”  Here there appears to be a possible false endorsement, because K’Naan’s fans were confused why he would support Romney.  Even so, the merits of a violation of an artist’s “Rights to Publicity,” “Lanham Act,” and “False Endorsement,” are debatable, and highly dependent upon the facts.

Returning to “The Donald”, Young is a well-known, outspoken liberal, so a false endorsement claim is unlikely to hold any water.  So in this case, Trump appears to have the necessary rights under copyright law, and to not have violated any of Young’s other legal rights.  Therefore, Trump, being the antagonist that he is, should continue playing Young’s music without his permission, correct?  Wrong.

The last reason Trump, and any other politician, should ask permission prior to playing an artist’s song at a campaign event is not a legal reason, but because of public perception.  While Trump seems to love controversy more than most, not even he will continue to play Young’s song because Young has publicly denounced Trump and thrown his support behind Trump’s potential opponent, Bernie Sanders.  Because the press gives these “unauthorized” music uses so much press, each time Trump played “Rockin’ in the Free World,” the press would certainly bring up Sanders, which is not what Trump wants.

Even worse, if Trump continued to play Young’s song, he would open himself up to a public shaming like the one Scott Walker recently received.  After Walker continued to play The Drop Kick Murphys’ song, the band responded on twitter saying “Please stop using our music in any way. We literally hate you!!!”

Co-Author: Allen Kronenberger

Allen Kronenberger, Esq., is a music and entertainment attorney based in Los Angeles, California, where he represents bands and artists, as well as other entertainment companies.  He previously served as the Director of Business and Legal Affairs at the music production company, Opus 1 Music, and Allen is a graduate of the University of Miami’s School of Law and University of Miami’s Frost School of Music, where he earned his Juris Doctor and Masters in Music Business and Entertainment Industries, respectively.

About the author

David Switzer

David G. Switzer, Esq., is the Director of Business Affairs at Creative License, a leading music licensing and talent procurement firm in New York. David is a graduate of University of Miami’s School of Law and University of Miami’s Frost School of Music, where he earned his Juris Doctor and Masters in Music Business and Entertainment Industries, respectively. David has a passion for writing, specifically on the topics of copyright and other intellectual property law as they pertain to the technology, music, and entertainment industries. He has also written extensively in the field of IP, including authoring an eBook while in law school entitled “The State of Intellectual Property in Latin America: Legal Trends, Economic Development, and Trade.” Prior to graduate school David received his Bachelors of Science in Business Administration with Concentrations in Law and Entrepreneurship from Boston University. David can be contacted at 561-866-6493 or davidgswitzer@gmail.com.

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