As the fireworks lit the sky over the White House during the Republican National Convention in August, some songs traditionally associated with conservative politics accompanied the fanfare, including “God Bless the USA” and “You’re a Grand Old Flag.” However, one particularly interesting choice was the late Leonard Cohen’s “Hallelujah,” as performed by singer-songwriter Tori Kelly. Interestingly, it appears that neither Cohen’s estate nor Kelly independently granted Donald J. Trump for President, Inc. (“the Trump Campaign”) or the White House permission to use the song.
The use poses this hot-button campaign question: Can politicians freely use popular music at live rallies and live events without regard to the interests of the artists that created and performed the works?
Indeed, the Trump Campaign is no stranger to threats of lawsuits for copyright infringement of musical works. Earlier in August, Canadian-born songwriter Neil Young (and a recent U.S. citizen) sued the campaign for its use of "Rockin’ in the Free World" and "Devil’s Sidewalk." This is an interesting development in the saga between Young and Trump. During the 2016 Presidential race, Young expressed disappointment that the Trump Campaign used his music without permission but conceded (perhaps incorrectly) that “once the music goes out, everybody can use it for anything.”
Sour relationships between political campaigns and musicians are nothing new. In 1984, Bruce Springsteen objected to Ronald Reagan’s proposed use of "Born in the U.S.A.," inspiring several artists, including Isaac Hayes and Sting, to do the same in later years. And although these disputes have predominantly involved Republican politicians, both the Democratic National Convention and Barack Obama have received criticism from artists for use of their music at rallies without permission. These ongoing tensions came to a head this past July, when the non-profit organization Artist Rights Alliance (ARA) and a cross-section of major-label musicians released a letter demanding that politicians of all parties obtain artists’ consent before any use of their music in connection with campaigns.
Some politicians have responded by removing music from their live campaign events at the behest of songwriters, but others have failed to heed such requests, leaving many to question the legal justification for such refusals. It appears that many uses of copyrighted works as background music at a campaign rally are legal through various copyright assignments or licenses. However, the circumstances and implications of the COVID-19 pandemic warrant a closer look at this issue.
Dispensing with Other Legal Theories
Some experts have opined that copyright law is not the only arena in which to recover for improper political use of music. They have focused on a panoply of legal principles designed to protect celebrity image and reputation. In their view, trademark dilution, right of publicity and false endorsement claims may provide redress. While all three legal theories are particularly viable (along with copyright law) when it comes to recorded content like TV commercials, there is a strong argument that for live events, copyright law may be a sole avenue for relief. This notion requires a closer look.
To begin, short musical phrases may sometimes constitute a trademark, such as the musical phrase “Nationwide is on your side,” the horn section on ESPN, or the chimes for NBC. However, an entire song (the music and lyrics) as song by a certain artist constitutes more than a protected trademark; rather it constitutes protected expression under copyright law. Given that the Copyright Act expressly covers not only the creation of musical works, but also their live, public performance, copyright law would likely govern the operative facts of an infringement claim if an entire song was appropriated, therefore preempting any trademark claim under the Lanham Act. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33 (2003).
Similarly, approximately half of U.S. states have enacted laws to protect the reputation of prominent people, granting them a right of publicity, which permits them to sue for misappropriation of their name, image or likeness. Accordingly, in those states, the question is likely whether an artist may claim that a live political event improperly used recordings of his or her voice (a distinctive characteristic) at a rally, or whether the use of the music may be deemed a “false endorsement” of that campaign event. See Browne v. McCain, No. CV 08-05334-RGK (Ex), 2009 U.S. Dist. LEXIS 141097, at *20 (C.D. Cal. Feb. 20, 2009). For example, California Civil Code § 3344 permits a cause of action for “knowingly us[ing] another’s name, voice, signature, photograph, or likeness, in any manner” without consent for advertising purposes. While the law is still being written here, it is possible that the publicity claims, which merge the content of the music with the performers’ persona, may be viewed as copyright claims by another name. In that case, courts may reasonably conclude that the publicity and false endorsement claims are preempted by federal copyright law. Hence, musicians are best served by starting with copyright law as the most suitable framework for their case.
Performance Rights
We have previously discussed the role of performance rights organizations (PROs) in administering licenses for public performance of works on behalf of artists. When artists initiate copyright infringement suits for a politician’s playing their music at live campaign events, they are generally attempting to protect their exclusive right to perform those works. Considering it could be quite burdensome for individual parties to negotiate licenses for musical compositions, Congress established a system whereby compulsory licenses are granted in exchange for royalty fees. In an effort to further lessen that burden, most artists assign their performance rights to performance rights organizations (PROs).
Accordingly, the license for public performance of a musical work is typically granted by these PROs. The largest PROs in the U.S.—the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC Holdings, Inc. (originally the Society of European Stage Authors and Composers but now known simply as SESAC)—generally establish broad blanket licenses for millions of songs within their catalogs. For instance, ASCAP alone manages the rights for almost ten million songs. Similarly, the non-profit organization SoundExchange manages the digital public performance rights of most musical works and may grant licenses to online non-interactive streaming services.
Most convention centers and arenas have obtained blanket licenses from PROs to play certain musical works during events. For example, when professional baseball player Dominic Smith makes an appearance for the New York Mets, their home stadium (Citi Field) has a license to play the song “Tunnel Vision” by the late Pop Smoke. However, most PROs exclude the performance of musical works at large venues during political events and rallies because the campaigns themselves become the primary beneficiaries. This is where a separate category of licenses plays a role.
Political Entities License
Most PROs grant specialized political entities licenses, which provide individual political campaigns with blanket licenses to use musical works in their catalogs regardless of location.
Although a political entities license gives campaigns express permission to use certain songs without copyright infringement liability, PROs typically provide artists with an opt-out provision in case they object to a particular campaign’s use of their music. For example, both ASCAP and BMI permit their members to exclude specific songs from political entities licenses with simple written notice. Some artists, like the Rolling Stones and Neil Young, have successfully removed their songs from lists of musical works that PROs permit political campaigns to use, but a few potential obstacles remain.
First, in 1941, antitrust consent decrees were entered into in an effort to ensure fair access to performance rights of musical works owned by ASCAP and BMI. While the PROs may argue that withdrawing certain songs from political entities licenses is done solely to protect artists from appearing to endorse political views or social policies, political entity licensees may argue that this prevents them from having the same access to music as “similarly situated” campaigns. These consent decrees are currently under review by the U.S. Department of Justice (DOJ) and received hundreds of public comments, so it is worth keeping an eye on these developments in conjunction with the Neil Young lawsuit. Any consideration of anticompetitive effects could make it more difficult for artists, even those with industry influence comparable to the Rolling Stones, to withdraw their music from use in political campaigns.
Additionally, as a practical matter, many artists may remove their songs from political entities licenses after they are used at campaign events. Given that PROs manage the performance rights to millions of songs under blanket licenses, a musician may not discover the use of her song until she hears it via telecast or social media. By that point, the most she can do is request removal from future events and release a statement in an attempt to prevent reputational damage.
Finally, although some politicians will apologize for using music without express permission from artists, others simply do not mind the risks. Some may be willing to ignore the moral underpinnings of U.S. copyright and contract law because they can simply pay monetary damages at a later date. For example, in 2010, after illicitly using the Talking Heads’ song “Road to Nowhere,” current Congressman Charlie Crist released a public apology to songwriter David Byrne and settled a lawsuit between them. On the other hand, numerous complaints of copyright infringement against the Trump Campaign have been ignored, and it continues to use some songs even without clearance. The outcomes of these tarnished relationships remain to be seen, but these issues may not be resolved until after the 2020 election.
Fair Use
Even if political campaigns knowingly decide to use musical works without permission, they may defend against a claim of infringement by arguing fair use. The doctrine of fair use could potentially address politicians’ First Amendment concerns by characterizing the infringement as an instance of free expression.
As discussed in our earlier blog, courts address four factors when analyzing the fair use defense: 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality of the portions taken, and 4) the effect of use upon the potential market for the original work. A decision would likely hinge on whether a court finds the allegedly infringing use commercial or noncommercial (per the first factor) and/or the effect on the value of the original song.
Some courts have addressed the issue of unauthorized use of copyrighted musical works by political campaigns, but the answer is anything but clear. One federal court found that fifteen seconds of a song in a radio advertisement was noncommercial use, and it did not affect the value of the original song. Keep Thompson, Etc. v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978). Another court found that even parody songs, which are commonly held to constitute fair use, were used in advertisements in a commercial manner that could reap profits and therefore illicitly infringed on existing copyrights. Henley v. DeVore, 733 F. Supp. 2d 1144 (C.D. Cal. 2010).
Both cases specifically involved the use of copyrighted works in advertisements, and the courts reached two distinct outcomes. Even though the use of such works at a live campaign rally or other public event may constitute commercial use when politicians seek donations, the sparse existing case law does not provide any unambiguous precedent. Regardless, the fair use doctrine may provide an avenue for political campaigns to avoid infringement liability, even without express permission from the copyright owner.
The 2020 Situation
We have been presented with a truly complex set of circumstances in 2020, namely the worldwide COVID-19 pandemic and unconventional campaign trails for the two major U.S. political parties. Both have raised unique questions regarding music copyright law.
With many political events “going virtual” as a result of the pandemic, an additional and novel set of issues have emerged. Even if a campaign has a license to perform certain music at a live campaign rally, if the rally is streamed online, the music becomes digital and in copyright terms, “fixed in a tangible medium” (the hard drive of the campaign’s server). As a result, an additional license from SoundExchange (for the digital public performance rights) is needed. So licenses from both the PROs and SoundExchange should be secured if the campaign wants to stay on the right side of copyright law. On top of that, with the musicians’ opt out right, the use of musical works in live and digital campaigns may require express permission from the artists themselves. The decision is ultimately up to the individual artists because PROs give them the right to exclude works from a political entities license. This group of rights gives musicians a path to recovery for use of their music by politicians the creators oppose.
Another curiosity in the case of President Trump’s White House rally is the fact that the Trump Campaign hosted the event on the grounds of the White House. Given that the Trump Campaign did not appear to secure public performance licenses from the PRO, SoundExchange or the copyright owners themselves, it would be subject to an infringement claim, unless there was some basis for the Campaign to claim that clearance was obtained from the National Park Service and the Department of the Interior, which technically own the White House. While the agency could obtain a license for the musical work, it is not clear that it did. As a result, the estate of Leonard Cohen may have a strong argument for copyright infringement. One further peculiarity is that copyright infringement claims against the U.S. Government can only be brought in the U.S. Court of Claims, not in federal court, and the remedies are more limited than in private litigation.
Many may also wonder how the Trump Campaign obtained a license to use a copyrighted musical work like “Hallelujah,” considering Cohen was a Canadian artist, not a U.S. citizen. Under international treaties, works created by most foreigners are entitled to the same protections and limitations under U.S. copyright law as works created by those living in the U.S. While Cohen’s music is primarily managed by the Society of Composers, Authors and Music Publishers of Canada (SOCAN), entities may obtain a license to use his works in the U.S. through BMI, which has partnered with over 90 organizations worldwide to permit domestic use of foreign music. All in all, a political campaign may avoid infringement liability simply by receiving express permission from an artist or foreign PRO.
In Summary
Some experts (and even some PROs) have suggested that some combination of the artist’s right of publicity and the Lanham Act may protect against misappropriation of image, trademark dilution and/or an appearance of false endorsement. However, copyright law remains the most viable framework through which artists may claim alleged misuse of their music and political campaigns may defend against those claims.
While express permission from an artist is the clearest way for a political campaign to avoid infringement liability, some PROs have already licensed the performance rights for numerous songs to certain venues. Furthermore, some political campaigns have already secured political entities licenses for the use of those songs. Those who did not may be willing to pay royalties at a later date or even argue fair use.
While the focus here is on live campaign events, it is worth noting that for campaign videos and other synchronized media that appear on YouTube, television, etc., often-overlooked synchronization and mechanical licenses may need to be obtained from the music publisher and the sound recording copyright owner. Lutzker & Lutzker is available to assist with these negotiations to ensure campaigns as well as other social media posters respect the copyright owners’ rights.
The outcome of the Neil Young case and DOJ review of the ASCAP and BMI consent decrees may provide some more clarity, so it is important to monitor both. And of course, keep an eye on the 2020 elections, as this issue is virtually certain to arise again.