Guerilla Radio: Political Campaigns and Copyrighted Music

Eminem Performing in Munich, Germany – Oct. 31, 1999

On October 25, 2017, the High Court of New Zealand issued a ruling in the much-publicized dispute between Eminem and New Zealand’s National Party, finding that the Party’s 2014 commercial infringed Eminem’s copyright on his hit “Lose Yourself.”¹ The infringing commercial featured a “soundalike” recording of the rapper’s song which differed very slightly from the original and was essentially a re-recording of exactly the same parts as the original.² The dispute garnered international attention and was even a featured segment on Last Week Tonight with John Oliver, which, unsurprisingly, predicted that Eminem would likely be successful in the suit.³

While this lawsuit was a particularly entertaining example (watching barristers awkwardly listen to “Lose Yourself” in a courtroom was admittedly fantastic), it raises a larger question of the use of copyrighted music by politicians and political parties. While the Eminem case arose in New Zealand, most of these disputes that Americans are familiar with arise during campaign season for presidential elections. Notable examples from the past few years include protests by Adele over Donald Trump’s use of her music, Heart and the Foo Fighters’ disapproval of John McCain’s use of “Barracuda” and “My Hero,” respectively, and the complaints by Silversun Pickups against Mitt Romney’s use of their music.⁴ These disputes go much further back, however, with one of the first prominent examples being Bruce Springsteen’s dispute with Ronald Reagan regarding his use of “Born in the U.S.A.” during campaign rallies.⁵

Given the disputes that seem to inevitably come up in every election season, a few important questions arise: (1) Are politicians violating copyright laws by not obtaining the express permission of the original artists?; (2) What rights do artists have against the politicians that use their music?; and, (3) Is it reasonable to expect every song in every campaign rally to be cleared with the original artist?

In answering these questions, the best place to start is the guidelines issued by the American Society of Composers, Authors and Publishers (“ASCAP”) for using music in political campaigns.⁶ This brief, two-page FAQ first insists that political campaigns contact the song’s publisher (and possibly the record label as well) and obtain explicit licenses to use the songs for political campaigns.⁷ The guidelines also make clear that the standard “public performance” licenses that are held by arenas, bars, convention centers, and other public venues actually exclude use by “conventions, expositions, and campaign events.”⁸ As extra security, ASCAP recommends that the campaign itself obtain a “public performance” license if it will be stopping at multiple venues.⁹ Lastly, the guidelines indicate that even if a campaign protects itself and doesn’t violate copyright, it may still be exposed to three different legal theories by unhappy artists: (1) a “Right of Publicity” violation under state law, (2) Lanham Act violations for dilution or infringement of an artist’s trademarks, and (3) and “False Endorsement” claims.¹⁰ Ultimately, campaigns should simply get express permission from the artist if they want to guarantee protection from these other claims.¹¹ Thus, while politicians will not be on the wrong side of copyright law if they have a “blanket” license from an organization like ASCAP, express permission may be the safest bet.

It should be noted, however, that these rules/guidelines do not apply when the songs are used in a television or online video commercial for the campaign.¹² John McCain learned this lesson the hard way upon being sued over the use of a Jackson Browne song in an attack ad against Barrack Obama in 2008 (the parties ultimately settled and McCain made a public apology for his use of the song).¹³ In the context of online videos, platforms such as YouTube typically have their own copyright “net” which catches unapproved uses of copyrighted songs in videos, so the original artist often never needs to get involved in a legal capacity.¹⁴

Yet, is this really the best system? If copyright law is insufficient to guard an artist’s moral objections to the use of their work, what can be changed to protect artists and not cripple the ability of politicians to use music at their events?

From the perspective of artists, the best solution seems to be simply eliminating the use of any “blanket” license by a political campaign and force them to obtain permission to use each individual song from the music publisher and record label.¹⁵ Proponents of this solution suggest that the “balancing” of interests behind blanket licenses simply doesn’t make sense in the political arena.¹⁶ Specifically, blanket licenses are meant to promote the free and spontaneous use of music by artists and others in public places without concern of copyright infringement (such as a bar playing Top 40 songs every night). However, in the context of a political campaign, the moral and creative interests of the original artist would seem to outweigh the interest of a political candidate to be able to impulsively switch songs at the last minute before a rally without an explicit license.¹⁷ This holds especially true because under current law, the only method for an artist to guarantee that a politician may not use legally use their music is to withdraw from the three performing rights organizations (ASCAP, BMI, SESAC).¹⁸ However, this solution has its own drawbacks, since this would put all venues playing their music at risk of copyright infringement, and venues would likely choose to not play the artist’s songs rather than obtain a specific license.

As with many issues, a congressional amendment to Copyright law specific to politicians would be the best solution. However, given the current pace of Congress and the low probability that politicians would volunteer to cripple their ability to use these songs, the most viable solution for artist-friendly reform is for the performing rights organizations to simply update their rules and regulations regarding blanket licenses. This could come in the form of simply barring campaigns’ ability to purchase blanket licenses, or a method by which artists could remove their songs from a campaign-specific license.¹⁹ However, the second solution places the onus on the artist for each individual politician or party and the administration of such a system would likely be far too complicated to implement.

The burden should be placed on the politician since they are “profiting” from the use of the song, but banning blanket licenses outright also might not be the best answer. Instead, the best solution might simply be streamlining the process by which a politician can ask for permission for a song. With the prevalence of shared playlists, campaigns could simply submit a proposed list of songs into an ASCAP/BMI/SESAC sponsored system which would alert the artist to the request, who would then be able to approve or deny. Under such a system, failure to respond could amount to a rejection, in order to protect an artist who might inadvertently fail to reject the use of a particular song. Given the evolution of social media and shared music, this solution might be the most cost-effective and simple method to protect both politicians and artists from getting ensnared in costly litigation or be embarrassed by unauthorized use.