Do you remember the time Donald Trump played “It’s The End of the World as We Know It” at a campaign rally and REM told him not to use their music "for your moronic charade of a campaign?" Or that time John McCain used “Running on Empty” in a TV ad bashing Obama and Jackson Browne sued him? Or that time Rand Paul used “Tom Sawyer” during his Senate run and Rush said that it was obvious Paul “hates women and brown people?"* It seems like every time there’s an election, you can't swing a dead cat without hitting a band upset at a politician for using its music. And with a year left before the general election, it’ll happen a few more times at least.
Most of the time it's just a blip on the news, something fun to chat about on a slow work day. But for some reason this election cycle it’s become a THING, launching a thousand and one think pieces like this one over the copyright issues inherent in this particular type of controversy.
Let’s clear this up first: using a copyrighted song without a license is infringement, even if it’s for a non-commercial/political reason. Songs generally have many copyright owners (the writers, musicians, record label, licensing houses, publishers, etc.) and that means you need several licenses, not just one. The RIAA has a useful primer illustrating a campaign’s legal responsibility when licensing music. Here are some highlights:
"When music is played in public, such as at a campaign event, it is typically necessary to obtain a license for the musical composition (words and music). It is not necessary to obtain a license from the owner of the sound recording (usually a record label).”
"A campaign must obtain permission from the owner of the musical composition (usually a music publisher [such as ASCAP, BMI, or SESAC]). This is known as a 'synch license.’”
“[I]f a campaign wants to use a specific recording of the song (e.g., Survivor’s recording of 'Eye of the Tiger'), then the campaign must obtain permission from the owner of the sound recording (usually the record label). This is known as a 'master license.'”
ASCAP has its own primer, stating:
“[I]f the campaign wants to use a song as its theme, they should contact the management for the artists and/or songwriters of the song in question and obtain their permission.”
So you need permission. And fair use, an oft-claimed but little understood doctrine, won’t give you relief either. As this Loyola of Los Angeles Entertainment Law Review article points out, using a song without permission for a political campaign typically won't qualify for fair use protection because:
- The use of the music is rarely transformative - despite the fact that political campaigns are not commercial, the song’s meaning is rarely altered, commented upon, or otherwise changed enough to differentiate itself from the initial use;
- The use of the music, often to bolster a candidate’s standing in the eyes of supporters and/or to bash other candidates, does not serve the public interest and is therefore not worthy of free usage; and
- If the music is used repeatedly, it could create a financial harm to the artist who would have otherwise been paid if the music had been properly licensed.
But let’s not kid ourselves; this is not a copyright issue. Copyright is merely the mechanism by which a musician can get the candidate to stop and/or pay damages. This is about politics. There’s a reason you rarely see musicians going after democrats, after all… they don’t endorse conservative candidates and they don’t want their fans thinking they do either. And when we talk about endorsement, we’re really talking about the artist protecting his or her brand. And that falls into the realm of trademark.
Artists, especially established ones, rightly view their reputation as a business asset. If people like the brand, they buy the product. If the brand offends them, they don’t buy the product. A good brand gives you not only money, but influence. That’s how Taylor Swift is able to force Apple to change its policy with a single blog post. So when artists perceive their brand to be under attack, they understandably lash out. Trademark law can give them the tools to do that.
Under the Lanham Act (the law governing trademarks), trademark infringement can occur if the use of a song by a politician is likely to create confusion** in the marketplace that the musician endorses the politician, especially if this association harms the musician’s reputation (referred to as “dilution by tarnishment”). But meeting this bar isn’t so easy. To determine whether a likelihood of confusion exists, the federal courts have developed an eight-factor test (called “the Sleekcraft factors” after the landmark 1979 Ninth Circuit case, AMF, Inc. v. Sleekcraft Boats). Those factors are:
- The strength of the mark;
- The proximity or relatedness of the goods;
- The similarity of the marks;
- Any evidence of actual confusion;
- The marketing channels used;
- The degree of care customers are likely to exercise in purchasing the goods;
- The defendant's intent in selecting the mark; and
- The likelihood of expansion into other markets.
A quick perusal of the list shows why there’s been so little litigation on this topic... there are a lot of factors and it's hard to meet them all! And that’s because most people don’t confuse usage of a song with political endorsement. In other words, they don't assume REM supports Trump even when the songs play prominently during his rallies. We all know that musical taste is not determined by ones' political leanings; people just like the music they like. That's all there is to it. Here’s a bit of truth for you: I find Ted Nugent to be one of the most repugnant human beings alive, but I still haven’t found a better song to exercise to than “Stranglehold.”
That’s why artists are generally content to play the copyright infringement card, or are satisfied with badmouthing the candidate. They definitely have legal options, but they butt up against the harsh reality of the situation, which is that no one cares if a republican uses a pop song during a campaign. No one is denouncing REM just because Trump used their song, and if they actually did, well they probably weren’t going to buy REM's record anyway, were they?
* This one must really hurt since Rush is apparently Rand Paul’s favorite band.
** They would also need to show that the politician used song in commerce. I’m ignoring that factor here for the sake of brevity (this blog post is already too long), and also because the facts of each case might lead to a different outcome.