MUSICIANS vs. POLITICAL CAMPAIGNS: Who Wins?

MUSICIANS vs. POLITICAL CAMPAIGNS: Who Wins?

By Barbara Mandell

With the 2022 midterms (almost) in the rearview mirror, political junkies are now free to turn their full attention to the 2024 presidential election. Today’s focus is on the tug of war that can occur when candidates play music at campaign events.  

Music has been used in political campaigns since George Washington played “God Save Great Washington” as a parody of “God Save the King.” According to the American Society of Composers, Authors and Publishers (“ASCAP”), Franklin Roosevelt used “Happy Days Are Here Again,” Dwight D. Eisenhower used “They Like Ike” and Barack Obama used “Signed, Sealed, Delivered I’m Yours,” written, respectively, by ASCAP members Milton Ager and Jack Yellen, Irving Berlin and Stevie Wonder.  

What happens when a musician does not want his or her music to be associated with a particular campaign or a particular candidate? The First Amendment protects, among other things, free speech. That protection is heightened in the context of political speech because government censorship in that realm is antithetical to an informed electorate and, therefore, to democracy. On the other hand, copyright law grants the copyright holder the exclusive right to authorize (and prevent) the public performance of a work (among other rights). When these rights collide, who wins? Several factors come into play in this situation.

One factor is the context in which the music is played. For example, in 2019, Nickelback objected to Donald Trump’s use of a portion of its music video in a campaign-related post on Twitter. Nickelback asserted its copyright and was able to quickly execute a take-down of the post. More recently, Kari Lake landed in hot water with Tom Petty’s estate and fans of Tom Petty’s music, for her use of the song “I Won’t Back Down” to describe her ongoing legal challenges following her unsuccessful bid in Arizona’s 2022 gubernatorial race.

Blocking the use of a song at a campaign rally can be far more difficult. This is because most of the venues where such events are held, like stadiums and arenas, have blanket public performance licenses from songwriters’ associations such as ASCAP and BMI (Broadcast Music, Inc.). So, if a song is included in the license and is played at the venue, the copyright owner has little recourse if he or she wants to stop such use. ASCAP alone manages the rights for almost ten million songs!  

Chutzpah, however, may be able to overcome issues that artists face in these cases, like a campaign’s valid public performance license or lack of copyright ownership. For example, Aerosmith front man Steven Tyler has objected numerous times to the use of his songs at Donald Trump’s campaign rallies. In 2018, his attorney sent a cease-and-desist letter to the White House and asserted that, by playing Aerosmith music at Trump rallies, the then-president was violating trademark law by falsely leading people to believe that Tyler endorsed the Trump campaign. The letter said that trademark law was implicated (1) because the band’s name constituted a trademark and (2) the performance would create confusion among attendees as to whether Steven Tyler was a Trump supporter, i.e., a “false endorsement,” and his attorney ordered the campaign to stop playing the music or expect a lawsuit. The letter must have worked because no such lawsuit could be located.

Another option is for the campaign to obtain its own license to play music at events. BMI has in fact granted a “Political Entities License” to Trump’s campaign, allowing it access to the 15 million musical works in BMI’s catalog. The license, however, has a catch: the songwriter or its publisher may object to a campaign’s use of the music and force it to stop. Among others, the Rolling Stones and the now-deceased artist Prince asked that their works be removed from the Trump license. 

As the new presidential election season opens, and with these insights, we look forward to identifying the songs campaigns use, which artists object, and how any disputes are resolved.  
Barbara Mandell is a partner at the firm. She has over 30 years’ experience in complex litigation. Her practice is focused on litigating, arbitrating and counseling her clients on patent, trademark and licensing matters as well as antitrust law. Check out her bio here.