Behind the Murky Rules of Soundtracking Political Campaigns
After more than three decades of televised campaigning, it seems politicians still don't understand the ins and outs of song usage, if recent tiffs between Donald Trump and R.E.M. and Mike Huckabee and Survivor are any indication. In Republican-hopeful Trump's case, R.E.M. singer Michael Stipe publicly scolded him for playing "It's the End of the World as We Know It (And I Feel Fine)" at a Sept. 9 rally: "Do not use our music or my voice for your moronic charade of a campaign." Survivor took issue with "The Eye of the Tiger" being used to soundtrack a post-jail appearance by Kim Davis, the Kentucky clerk who refused to sign wedding licenses for same-sex couples, and would-be candidate Huckabee.
The issue is primarily a concern for Republicans, who, through the years, have attracted ire from such artists as Bruce Springsteen, Jackson Browne, David Byrne, Foo Fighters and John Mellencamp, along with many others who complain or even sue over unauthorized use of their work. "Because music is so powerful, candidates are tempted to use particular songs, despite the legal issues," says RIAA executive vp communications Jonathan Lamy. "Most campaign staffs' knowledge about this area is probably thin."
Today, most political campaigns are licensed by the U.S. performance rights societies, ASCAP and BMI among them, and covered by a traveling performance license that applies to rallies and appearances regardless of venue. But music publishers note that such licenses do not cover song usage that could be construed as a part of a candidate's branding.
Understanding The Lanham Act
Enacted in 1947, the law primarily protects against false advertising. If the usage can be construed as an endorsement, and infringes on rights of publicity, which allow artists to control the commercial use of their name, image, likeness and other criteria, the politician could be liable. Browne and Byrne are among the musicians to have reached undisclosed settlements after suing offending politicians, but industry lawyers say they don't know of any case involving a political campaign and based solely on the Lanham Act or publicity rights that has gone to trial and delivered a successful verdict.
The Public Performance Pickle
"According to the U.S. Federal Circuit Court, any substantial portion of a composition is a performance, meaning technically copyright violations are possible even if not intentional," says one political strategy consultant. However, the songwriters then have to prove whether the song use was substantial or background, which can be complex and expensive. "Political operatives during campaigns are all about being murky, and this song-usage issue is all about the murk."
This article was originally published in the Sept. 26 issue of Billboard.