With the U.S. midterm elections upon us, it is no surprise to see the campaign rhetoric ratchet up. In many cases, the political campaigns may choose to drive home their platform with a chosen artist’s music that, in the campaign’s eyes, supports the candidate’s political message. Unfortunately, such choices do not always sit well with the artists, creating anything from profound embarrassment to expensive litigation. This recently occurred with the artist Pharrell Williams, who sent a cease & desist letter to President Trump objecting to the president’s use of the song “Happy” at a rally not long after the deadly shooting of congregants at a Pittsburgh synagogue, Unfortunately, there is a long list of artists objecting to the “political” use of their copyrighted works in campaigns, and that list will likely keep getting longer.
Let’s face it — such clashes are inevitable. Most artists do not envision their creative expression being used in a way that runs counter to their beliefs. I would also venture to guess that most politicians do not account for whether the artist whose music they wish to use is aligned with the campaign’s political beliefs. Worse, some campaigns may completely misunderstand the underlying message of the music they seek to use (as happened with Ronald Reagan and his campaign’s use of Bruce Springsteen song “Born in the U.S.A.” as a patriotic anthem when, in fact, the song is more a commentary on the hypocrisy of patriotism and the hardships suffered by Vietnam veterans returning from the war).
The public performance of an artist’s copyrighted work is an exclusive right reserved to the artist under Section 106 of the Copyright Act. If music is to be played publicly at a campaign event, then a license to publicly perform that musical compisition must be obtained before doing so. Such licenses are normally issued by performing rights organizations (“PROs”) with which the artists are affiliated (such as ASCAP, BMI, and SESAC), which collect the royalties from such public performances and distribute them to the artists. In the case of Pharrell, he is affiliated with a relatively new PRO called Global Music Rights, a PRO that quite clearly did not license the musical work “Happy” to the venue in question or President Trump.
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When it comes to the public performance of musical works in the political arena, nothing should be taken for granted (an understatement in this divided political climate, to say the least). Here are three assumptions that every political campaign should absolutely avoid if it wants to remain in tune with artists as well as the electorate.
Never Assume the Venue Has a License to the Musical Work. A simple proposition, yet one that is easy to ignore. Although venues can obtain an annual license from a PRO for the works covered in the PRO’s catalog, a campaign should always check with the venue to gain an understanding of whether the work(s) they seek to use are covered by the venue’s license. If this is not the case, and the campaign seeks to use the song at multiple rallies, then the campaign should seek a “traveling license” directly from the applicable PRO.
Never Assume That the Public Performance is Covered by the Venue’s License. Even if the venue has a license from the correct PRO for the musical work sought, such licenses may exclude use by a political campaign at a rally. ASCAP has provided guidance on this very point — “as a general rule, the licenses for convention centers, arenas and hotels exclude music use during conventions, expositions and campaign events.” Again, the safe play is to contact the PRO to obtain a license for public performance of the musical work wherever a rally is held.
Never, Ever, Assume the Artist Agrees With You. This should be a no-brainer, but is usually ignored. Even if there is a license in place, there are colorable claims that can be brought by an artist who objects to the use. The artist can claim a violation of a state law right to publicity, or potentially false light claims. Further, the artist can claim false advertising under Section 43(a) of the Lanham Act, claiming that the use of the musical work constitutes some type of affiliation with, or sponsorship or endorsement of, the politician by the artist. Objections lodged by artists over the years against political campaign using their music have relied on many (if not all) of these grounds when lawsuits were filed, so politicians beware.
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I understand that political campaigns may be reluctant to approach artists directly for permission to publicly perform their works, but it is better to be safe than sorry. The optics of an artist objecting to the use can be detrimental to a political campaign, providing unwanted press and embarrassment. In fact, the late John McCain’s presidential campaign was forced to settle with Jackson Brown over the public performance of his hit ”Running on Empty” and publicly apologize for the use in the process. The old proverb “it’s better to beg for forgiveness and ask permission later” does not ring true here.
Although the issue is even more complex when addressing use in campaign videos and political ads (and beyond the scope of this article), the point is the same — get permission from the artist, not just the PRO. It’s time to hear politicians singing a different tune regarding the public performance of music at campaign rallies, rather than remain tone deaf to the consequences. Perhaps they may even heed the foregoing and avoid these assumptions. Like many a political promise, however, I wouldn’t necessarily bet on it.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at [email protected].