Fight Songs: Campaigns and Copyrights

09.30.15

Whether we are ready or not, it is campaign season (again). As campaigns try to rally supporters, they often pick a song that is played at events that they believe reflects the candidate. Almost inevitably, at least one campaign chooses a song that the band who sang it or songwriter of it does not support the candidate. It is easy to predict what will happen next. The band or songwriter complains and demands the campaign stop using the song; the candidate claims he has the right to play it and continues to do so. What happens next depends on the copyright holder.

Copyright vests in the creator of the piece of artistic work. In a song, there may be several layers of copyright if several artists were involved it its creation. One may own the rights to the lyrics, another owns the rights to the music, and a third owns the right to the performance. Each of these rights may be transferred to a third party either by a sale, an assignment, or a license. Organizations like ASCAP, SESAC and BMI can assist copyright holders collect royalties when others then play the songs in public places. 

If the campaign does not obtain any permission or license, the copyright holder may file suit like David Byrne did against Charlie Crist. The $1 million dollar suit settled out of court but did result in a video in which Crist acknowledged that it was wrong to use the song without permission, pledged that he would uphold the rights of artists, and obtain license for any future campaigns. Tom Petty has simply used the threat of litigation with several cease and desist letters including those sent to Michele Bachmann and to George W. Bush. In fact, the stop using my song cease and desist letter has a long history in presidential campaigns.

The RIAA states, ​“When music is played in public, such as at a campaign event, it is typically necessary to obtain a license for the musical composition (words and music). It is not necessary to obtain a license from the owner of the sound recording (usually a record label).” The RIAA then suggests that a performing rights organization such as ASCAP, BMI, or SESAC is the appropriate place to obtain such a musical composition license. However, ASCAP is a little more cautious. ASCAP recommends  that although many venues may have public performance licenses, it is likely better for a campaign itself to obtain a public performance license from the performance rights organizations and also obtain permission from the copyright holder as well. 

This belt and suspenders approach helps because although the public performance license might prevent a copyright infringement suit, it will do little for many other actions a band may do. First, they may sue for false advertising, right of publicity, defamation, or false light (as the RIAA duly warns). Or they might just tweet that they ​“literally hate you” like the Dropkick Murphys did to Scott Walker or worse as Michael Stipe (through the account of bandmate, Mike Mills) did to Donald Trump. Or perhaps it will push the band to start campaigning for the opposite side as Dave Grohl and the Foo Fighters did for John Kerry after George W. Bush used ​“Times Like These.” They even stopped in Madison and performed on West Washington Avenue in support of Kerry. But don’t worry, some candidates fight back as the battle between Trump and Neil Young continues.

See more fights between campaigns and song owners here, here, and here. And NPR gives a nice guide to would-be campaigns in Music in Political Campaigns 101.

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