Notes and Votes: Use of Copyrighted Music at Live Political Events: Addendum

By Carolyn Wimbly Martin and Charlotte Cuccia

This post is an update. You can read the original post here.

From Ronald Reagan and Bruce Springsteen to Donald Trump and Neil Young, the contention between politicians and musical artists who find their copyrighted music being played in political campaigns is nothing new. Our earlier post discussed the use of this music at live events and the role of performance rights organizations (PROs), but a case pending in the Southern District of New York, Grant et al v. Trump et al, may shed further light on the use of copyrighted music in political advertisements.

In September 2020, singer Eddy Grant sued President Trump and his reelection campaign team for the use of his song “Electric Avenue” without his permission in an attack ad against then-candidate Joe Biden. The video featuring the song was tweeted out to his followers and played almost 14 million times at the time of filing the complaint. The New York federal judge previously rejected the argument that the ad was sufficiently transformative and will allow the former president’s former deputy chief of staff, Dan Scavino, to be subpoenaed.

Attaching a song to a campaign ad posted on the Internet or broadcast on television has clear legal risks. Generally, using a song in advertisements synced with images implicates the rights associated with copying and preparing a derivative work, as well as those of public performance, and possibly public distribution. Using music in a video typically requires the producer to obtain synchronization and master use licenses. A sync license grants the right to use the composition in timed relation to the video in the advertisement. A master license is similar, granting rights in the master recording in timed relation to the advertisement.

Typically, the producer (or campaign) will need to obtain both licenses and pay both the recording artist and the owner of the original composition to use their song in a political advertisement, and bad things can happen when they don’t. For instance, former Florida Governor Charlie Crist settled a lawsuit in 2011 with David Byrne, lead singer of Talking Heads, for using a Talking Heads song in a campaign advertisement that was posted on Crist’s website and YouTube. Crist used the song “Road to Nowhere” in his advertisement, which negatively targeted Marco Rubio after Rubio defeated him in November 2010 for the U.S. Senate. Byrne brought suit for copyright infringement, alleging that Crist had never asked permission and that this infringed his public performance rights in his sound recordings. While Byrne achieved a settlement for this lawsuit, the terms of which both parties refused to reveal, Crist also issued an official apology that he posted on YouTube.

In a dispute that gained public attention in 2008, Jackson Browne sued John McCain for using “Running on Empty” in a political web video that criticized Barack Obama’s energy policy. Browne, a self-proclaimed liberal, alleged that he had never given John McCain permission to use his musical composition in the video. Eventually, the case was settled after the court rejected McCain’s fair use defense. Browne received an undisclosed settlement in damages, a public apology, and the apparent pledge that Republicans would “respect and uphold the rights of artists and to obtain permissions and/or licenses for copyrighted works where appropriate.” Of course, this left the McCain campaign with legal bills and an embarrassing footnote in political history.

As we head into another very contentious campaign season, unlicensed use of popular music in political ads is likely to resurface despite being a legally questionable practice. We encourage political campaigns to check with Lutzker & Lutzker for guidance on the use of music in their ads.