Elephants and Donkeys Love Music-The Copyright Rules of Using Music in Politics

By now you have probably read about or have seen the clip of Donald Trump entering the RNC stage amidst smoke and blue lights to the Queen song, “We Are the Champions.” Queen asked Trump in the past prior to the convention not to use their music. However, he or his team decided it was the perfect song for an entrance, one in which he made to briefly introduce his wife Melania as she gave her main stage speech. http://www.hollywoodreporter.com/news/queen-not-happy-donald-trump-912395

Candidates and political campaigns for years have played music at rallies, on commercials, at town-halls, and pretty much every place in between. Campaigns on both sides of the aisle have gotten flack for not having permission to play music, for not giving an artist a heads up, or for continuing use after specifically asked not to.

For your enjoyment:

Trump’s playlist features these songs: https://www.washingtonpost.com/news/post-politics/wp/2016/02/15/donald-trumps-campaign-soundtrack-a-grammy-day-playlist/

Clinton’s features these: https://play.spotify.com/user/hillaryclinton/playlist/43JJ50RsHoyUXj8eI8FaPQ?play=true&utm_source=open.spotify.com&utm_medium=open

For your enjoyment here is Clinton dancing to her campaign theme song, Rachel Platten’s “Fight Song”

Songs, lyrics and the like are protected by U.S. Code: Title 17-Copyright. When you or I play a song at a wedding, birthday party, or up in the club, we typically aren’t worried about getting in trouble. We don’t think, “Oh maybe I’ll ask Sia if I can swing from the chandelier while playing her song Chandelier.” Why? Our use is most likely allowed under the Fair Use Section of the Copyright Act. Under the  Fair Uses of Copyrighted Material Section of Title 17, the fair use of copyrighted material without permission is allowed when used for the following purposes: Criticism, Comment, News Reporting, Teaching, includes making copies for use in the class room, Scholarship and research, and Parody.

Note: I don’t see “Political Campaigns” on this list.

Copyright lawyers, song writers, and frankly anyone interested in this issue can access a somewhat new “Fair Use Index” that was started in 2013. The Unites States Copyright Office (Separate from the United States Patent and Trademark Office) made an index with a “broad variety of selection of cases, [but] it does not include all judicial opinions on fair use.” http://www.copyright.gov/fair-use/

Wouldn’t an artist want their song played? Lovely Adele can answer this question but she may cuss you out in the process. Artists, writers, producers, etc. own the rights to their music. It is their intellectual property and often their bread and butter. Furthermore, they don’t always want their act or art associated with things they are not into. And rightfully so.

ASCAP, The American Society of Composers, Authors and Publishers (ASCAP) has more than 575,000 members explains that EVEN IF property copyright licensing occurs, a political campaign may still be liable under any of the following claims:

  1. “Right of Publicity,” which in many states provides image protection for famous people and artists.
  2. The “Lanham Act,” which covers the confusion or dilution of a trademark (such as a band or artist name) through its unauthorized use.
  3. “False Endorsement” where use of the artist’s identifying work implies that the artist supports a product or candidate.

http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf

At Mohr IP Law we can help you copyright your creative intellectual property. As ASCAP explains:  Your attorney can “…contact the management of for the artists and/or songwriters of the songs in question and obtain their permission. In addition to permission from management, a separate negotiated license may be required by the publisher of the composition, and if used, the record label that controls the master recording”

http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf

We don’t want you to create the most amazing piece of art or music only to see it used for someone else’s profit. Or, for someone’s political campaign who you may not endorse. After all, you wouldn’t want to be like Adele, “Rolling in the Deep.” You’d rather be Adele, “Rolling in the Deep Pockets.”

 

 

 

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