This article deals with the lawful usage of music in political campaigns, a hot topic affecting the United States music industry. Recently, presidential candidate Donald Trump used lyrics from Canadian singer Neil Young’s “Rockin’ in the Free World”, fueling the debate to the extent that ASCAP has intervened and issued guidelines to tackle the issue.
Point at the sky and go Rockin’ In The Free World, America!
This is Donald Trump’s silent message delivered on the occasion of his candidacy announcement for president of the United States of America when, pointing high to the sky, Neil Young’s desperate song started playing. Why did Trump pick the very song which stingingly criticized President George H.W. Bush’s policies? After all, he is pursuing remarkably similar goals. Did he attempt to pump up his troops and underscore his message, as songs are often used in analogous cases? If so, his choice is even more controversial and unintelligible, since his plan of action does not match the song’s meaning. However, this is not the relevant point in the case at hand.
Indeed, if we shift the focus from the political strategies to the relevant laws, a question comes to the forefront: did Neil Young ever consent to be associated with Trump’s campaign? No, Young did not.
The Rockin’ In The Free World example illustrates the well-established trend of U.S. political candidates ignoring copyright laws. Politicians seem to rely on the historical record that singers do not tend to sue candidates on this ground and thus disregard the legislative encumbrance. While most artists have merely complained that campaigns played their pieces without permission and waited for their works to be struck from political playlists, artists often do retain some recourse when they believe a campaign has inappropriately tied their music to a political message. Some memorable examples include the Survivors’ Eye of the Tiger and K’naan’s Waiving Flag. Despite the visibility gained, some singers still may have several reasons to be unenthusiastic about being associated with a political wing. For instance, if they are falsely implied to endorse a candidate, then they can reasonably predict to lose the support of part of their fanbase and consequently suffer an economic loss or be stigmatized by a certain political dogma.
Furthermore, politicians seem to act as if they have enjoined some kind of right to use music as part of their political campaigns, such as fair use or free speech. But, as Joel Schoenfeld, a partner at the law firm Mitchel, Silberg & Knupp, has noted, none of those claims ever really hold up. Accordingly, politicians themselves may be damaged by their one-dimensional attitude towards copyright laws as recent controversies over unauthorized music use have created unwanted negative publicity for candidates.
In this scenario, what should candidates like Trump do to comply with American music copyright laws and avoid liability?
First, as ASCAP suggests, they should obtain a public performance license. In particular, considering that licenses for convention centers, arenas, and hotels all exclude music during campaigns, the safest choice would be to at least obtain a public performance license from ASCAP in order to comply with copyright law wherever there was a campaign function. All in all, quite effortless! For the sake of completeness, Trump’s campaign manager fired back at critics alleging the existence of a licensing agreement with ASCAP; however, this does not prevent singers in the same position as Neil Young from bringing other claims.
One should bear in mind that even though a campaign is properly licensed, it could still be liable under one the following claims:
- right of publicity, which grants protection to image of famous artists and people;
- false endorsement, when an implied support from the singer to the candidate apparently occurs but it is not reality-reflective; and
- dilution or confusion of a trademark (in this case the singer’s name) under the Lanham Act.
In light of the above, the second step that Trump should have taken in order to fend off any possible claim would have simply been to contact the management of the artist and the songwriter to obtain permission, and to negotiate a license with the publisher of the composition and the label. After all, in such cases, it is the singer’s permission which ultimately matters.As this analysis reveals, sometimes playing on the safe side is accessible and uncomplicated. The hurdle is not to enter the process to obtain a license and comply with copyright law, but to find a singer unafraid of being linked to a political party. In short, consent is the key.
Candidates need not look so far to find artists’ support. Many artists have been willing to “lend” their voice to presidential candidates. For example, President Barack Obama used Signed, Sealed, Delivered I’m Yours, by Stevie Wonder, an ASCAP member while Katy Perry wrote the 2016 theme song for Hillary Clinton’s campaign.
To conclude, a reasonable effort on the campaign side seems to be the decisive factor to ward off complaints, bad publicity, and liability. Indeed, Rockin’ In The Free World should not be free: royalties and consent are the price that candidates have to bear. Over the course of the ongoing presidential campaign, we will most likely witness whether candidates learn ASCAP’s lessons on music copyright compliance and standard practices.