Whether it’s the songwriter, the performer, or the recording label, someone always owns the rights to a song. Whether or not one needs permission to play that song depends a lot on the circumstances. A DJ at a wedding doesn’t need to worry about any consequences for playing Peter Gabriel's “In Your Eyes” or The Righteous Brothers's “Unchained Melody.” Sports arenas can pipe in the Rolling Stones's “Start Me Up” without a release.
In the world of politics, however, campaigns and rallies that rely on music to stir up crowds often come under fire for unauthorized use. What’s the reason?
According to Rolling Stone, it’s not typically an issue over copyright, though using a song without permission is technically copyright infringement. If a song is played in a public venue like a stadium or arena that has a public performance license, no permission is needed. The license is typically granted through a songwriters’ association like the American Society of Composers, Authors, and Publishers (ASCAP) or Broadcast Music, Inc. (BMI). Even so, ASCAP still recommends [PDF] that political campaigns seek out permission from the musicians or songwriters, as these licenses exclude music played during conventions or campaign events.
Additionally, most artists aren’t concerned with their music being played at a wedding or sporting event. It is, after all, a form of free publicity and exposure, and no one is really making any substantial amount of money from their work. But the political realm is different. Because artists might have differing political beliefs than a candidate using their music, they sometimes grow concerned that use of their material might be construed as an endorsement.
That’s when artists can begin to make noise about wanting politicians to stop playing their music. In this instance, they can object on the basis of their Right of Publicity—a legal argument that covers how their image is portrayed. They can make the assertion that use of their work infringes on their right to not be associated with a subject they find objectionable. Other arguments can be raised through the Lanham Act, which covers trademark confusion (or a False Endorsement), which addresses the implication an artist is endorsing a political message if their music is used.
In 2008, for example, Jackson Browne won a lawsuit against John McCain and the national and Ohio GOP when the McCain campaign used Browne’s song “Running on Empty” in ads attacking Barack Obama over gas conservation.
Even if the musician isn’t supportive of a candidate, it’s not always advisable to take such action. A contentious legal confrontation can often result in more publicity than if a musician simply let the campaign continue uninterrupted. Other times, recording artists feel strongly enough about distancing themselves from a message they disagree with that they’ll take whatever steps are necessary.
The bottom line? More often than not, a song played during a campaign isn’t there because an artist or label gave their permission. And unless the artist strenuously objects to the campaign message and is willing to get into a legal tussle, they probably can’t do a whole lot to stop it.
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