Internet & Social Media Law Blog
Moments before former President Donald Trump took to the stage at a Montana rally this August, Celine Dion’s 1997 hit, “My Heart Will Go On,” blasted over the speakers while a clip appeared onscreen. It took less than 24 hours for the five-time Grammy winner’s team and Sony Music Entertainment Canada to issue a statement on social media saying that “in no way is this use authorized, and Celine Dion does not endorse this or any similar use.” Amid a heated political season, it’s not unusual for candidates to clash with the artists whose music they promulgate on the campaign trail. In Trump’s case, though, using a video compounded the legal complications. While political licensing for music typically needs approval from the recording artist, video playback requires approval from both the artist and composer. In theory, this fact would make it less risky for campaigners to stick with audio-only soundbites of their favorite crowd-pumping tunes. However, there are still questions around general music licensing dos and don’ts when it comes to politics, even as performing rights groups work to clarify things. For now, the intersection of artists’ rights and political campaigns remains a murky legal crossroads, at best.
Campaign Music Is Nothing New
As Chris Willman, chief music critic for Variety, points out, popular songs have long been mined for political purposes. More than 200 years ago, George Washington’s campaign created jingles adapted from popular songs of the time. Refrains like, “My lads, march on, and follow, follow Washington,” are a far cry from today’s election-season songs by the likes of Beyoncé and the Rolling Stones. But those tunes began the American tradition of setting a campaign’s tone with music. A century later, Ronald Reagan started entering events to Lee Greenwood’s “God Bless the USA,” ushering in a new era of “walk-on, walk-off” campaign melodies. He also popularized the idea of politicians using already-existing hit songs at events. Since then, would-be elected officials have turned to the Billboard charts to bolster crowds and evoke emotions in audiences, sometimes to the chagrin of the artists themselves.
Famously, Bruce Springsteen was the first musician to make a stand in the political arena, objecting to Reagan’s use of “Born in the USA” in his 1984 campaign. One election cycle later, Bobby McFerrin made headlines when he asked George H.W. Bush to stop using his cheerful hit, “Don’t Worry, Be Happy.” Despite Bush’s attempts to woo McFerrin with dinner, the musician insisted that he supported Bush’s opponent, and the eventual President conceded use of the song.
In 2008, performer Sam Moore asked Barak Obama to stop playing “Hold On, I’m Comin’” at rallies. (Audience members sang, “hold on, Obama’s comin’.) “My vote is a very private matter between myself and the ballot box,” the singer noted. In the same election, Swedish band ABBA sent a cease-and-desist letter to John McCain’s camp after he played “Take a Chance on Me” at political gatherings. The band is once again making waves as they challenge Trump’s use of “The Winner Takes it All,” among other songs, at his 2024 rallies. A number of artists have recently filed similar lawsuits against Trump.
What the Laws Say
Copyright protection begins when an original work is fixed in a tangible medium, such as when a song is recorded or notated in sheet music. A song can be protected by copyright as both a musical work and a sound recording. These works are usually owned and licensed separately and are subject to different rules. The Music Modernization Act (MMA), signed into law in 2018, aims to update copyright law to address new forms of technology such as digital streaming, and to make statutory licensing more equitable for creators and more efficient for digital music providers. As artists go to court over the politicization of their music, it becomes increasingly apparent that the legal landscape for copyright laws is complicated and it may not always be in a musician’s control to choose where their music is played.
Some politicians may look for loopholes, such as trying to claim rights to music based on a venue’s licensing or calling the fair use doctrine into play. These arguments tend to be fact-intensive and decided on a case-by-case basis, and it can be an expensive and daunting process for musicians to litigate.
However, artists don’t have to rely solely on copyright laws. A number of additional statutes, including right of publicity, which in many states offers image protection for famous people or artists, the Lanham Act, which addresses confusion or dilution of a trademark (like a band or artist name) through its unauthorized use, and false endorsement, which refers to a person’s identity being connected with a product in a way that misleads consumers.
What Performing Rights Organizations Say
Facing legislative ambiguity, many performing rights organizations (PRO) have taken it upon themselves to establish political-based licenses that are independent of their standard blanket copyrights. PROs essentially work to collect royalties on behalf of, and protect the rights of, music creators, including songwriters, composers and publishers.
Around 2010, BMI established a Political Entities license, which acts as a blanket license that is required in addition to venue licensing for political groups hosting events. The license offers politicians rights to more than 20 million songs for their functions, and technically licensees do not have to directly contact artists for playback permission. Nonetheless, under this licensing, artists have the freedom to exclude works from the agreement “if a songwriter or publisher objects to its use by a campaign,” a BMI representative explained to Newsweek. BMI goes on to say that using a song following such a notice “shall be deemed a material breach of this Agreement.” The Rolling Stones, backed by BMI, cited this clause in a 2020 suit against Trump, though it was eventually dropped.
ASCAP requires candidates to obtain a “public performance” license (also in addition to a venue’s licensing) to play copyrighted music at events. The license is good only until a politician is sworn into office. Like BMI, ASCAP’s public performance license provides a blanket license to the millions of songs in its library but stipulates that ASCAP members can ask to exclude their works from the license. As such, on its website, ASCAP encourages campaigns to obtain advance permission from artists for use of songs, noting that “a separate negotiated license may be needed from the publisher of the musical work, and if the master recording is used, the record label that controls that recording.”
RIAA, though not noting a specific license geared at political entities, takes a similar stance, stating, “The bottom line is that it is best for a campaign to seek permission from the songwriter, artist, and copyright owners before using a song to rally the crowd, as an intro or lead up to a speech, as a signature song of the campaign, or in an advertisement.”
Smaller licensing groups have also jumped into the political fray. In 2016, Audiosocket, a Seattle-based PRO, successfully sued Ted Cruz and his advertising agency on behalf of two of its artists. In the breach of contract and contract violations suit, Audiosocket claimed that Cruz’s ad agency entered into a “small business” contract and did not disclose that the music would be used for political purposes. The mistake cost the Senator and his ad firm $55,000 in damages.
Conclusion
Navigating the complex system of political licensing rules can be difficult for both politicians and music makers. In some cases, musicians make enough public noise to persuade politicians to halt the use of their work, and their lawsuits never make it to court. However, musicians are increasingly leaning into the terms of their political licensing agreements—and turning to their PROs for support as they file lawsuits.
It’s not surprising that many creators want to maintain control of their messaging. In 2020, Grammy-winning gospel singer Yolanda Adams testified before the Senate Subcommittee on Intellectual Property regarding fair use policies. She argued that musicians span a spectrum of political views. “If candidates want to use music in their campaigns, work with us—the artists and songwriters—to find the right match,” she urged. As more and more artists reject being politically affiliated, it is certainly wise for political entities to heed all licensing rules and ensure they have received the requisite approvals from musicians. The alternative can not only generate bad publicity for candidates but could land them in court.