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Navigating the Law of Politics (and more)

Politics has become a regulated industry. At Berke Farah LLP, we provide legal advice and counsel to help clients navigate all aspects of the political process – including campaign finance & election law, government ethics, lobbying law, corporate anti-corruption compliance, government investigations, non-profits, and fundraising. Beyond politics, we also represent clients on white collar criminal defense, regulatory, corporate governance, intellectual property, and entertainment law. Our clients include Fortune 500 companies, national trade associations, lobbying and public relations firms, political committees and campaigns, elected and appointed government officials, artists, musicians, and writers.

The Dangerous Use of Music in Political Campaigns

by Matthew Swanlund (Senior Consultant)

Recently, Donald Trump entered the race for President of the United States descending an escalator in Trump Tower to the tune of Neil Young’s “Rockin’ in the Free World.” According to the Trump campaign team, they obtained all necessary licenses to publicly perform the song from the copyright holder. However, Neil Young, was never contacted by the Trump team.

Based on the statement from Young’s record label, he wasn’t happy about it. Neil Young issued the statement: “Donald Trump was not authorized to use ‘Rockin’ in the Free World’ in his presidential candidacy announcement. Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.” Whoops.

So who’s right here in this mess? Did Trump satisfy his legal obligations when he secured the appropriate public performance license? Does Neil Young have the ability to control who publicly performs his songs? Who thought it a great idea to enter on a descending escalator?

If Trump is only using the song when he appears for an event descending on an escalator, then he likely would only need a public performance license. Such a license can be obtained from ASCAP, BMI or SESAC, which are music performing rights organizations that license the public performances of its members’ musical works. A public performance is defined as one that occurs in a public place where people gather (other than a small circle of a family or social acquaintances). A public performance is also one that is transmitted to the public, for example, radio or TV broadcasts, and via the Internet. A campaign rally or event would qualify as a public performance place.

While many venues have proper “public performance” licenses in place, as a general rule the licenses granted for convention centers, arenas and hotels specifically exclude music used during conventions, expositions and campaign events. I’m hypothesizing here, but I’m sure that Trump Tower already has the most extensive, classy and visually opulent public performance license ever created by man. However, if Trump’s campaign plans on holding events at dozens of different venues where he will be descending escalators, it may be easier for the campaign itself to obtain a public performance license from ASCAP, BMI or SESAC. This would guarantee that, no matter where he descends, the campaign would be in compliance with copyright law.

In our multimedia and social media centric world, especially as relates to political campaigns, it is highly likely that the Trump campaign would like to use the song in commercials, on the campaign website, YouTube page and social media accounts. A public performance license will not likely be sufficient for these purposes. These uses involve rights such as synchronization of music with video and the possible use of the master sound recording. The campaign will need to contact the song’s publisher and possibly the artist’s record label to negotiate the appropriate licenses with them. Campaign videos containing music that are posted on the Internet also require these licenses. TV and radio stations, and any web sites that transmit the commercial must hold a public performance license.

ASCAP, BMI and SESAC do not issue mechanical and synchronization licenses, which means that to obtain such licenses the campaign must negotiate directly with the songwriters or publishers. Additionally, a mechanical license does not grant the right to reproduce sound recordings, also known as “master use rights.” Master use rights can only be obtained from the owner of the master recording, usually a record company.

Even if a song is properly licensed by a campaign, there is other potential liability that could arise for playing that song at an event. If an artist does not want his or her music to be associated with the campaign, the artist may be able to take legal action even if the campaign has the appropriate copyright licenses. While the campaign would technically be in compliance with copyright law, it could potentially still be in violation of other applicable laws, including: “rights of publicity”, which in many states provide image protection to famous entertainers or artists; the “Lanham Act,” which covers the confusion or dilution of a trademark (such as a band or artist name) through unauthorized use; and “false endorsement,” where use of the artist’s identifying work implies that the artist supports a product or candidate.

How then can a campaign protect itself against these types of claims? If a campaign wants to eliminate any of these claims, particularly if the campaign wants to use a song as its theme, they should contact the management of the artists and the songwriters and obtain their permission to use the song. Obviously, this is the best way to ensure that the artist supports the campaign. Second, a public performance license will ensure that public performance of the song at campaign events is in compliance with copyright law. Third, a synchronization license should be obtained for use of the song in commercials, multimedia presentations, websites and any other uses in conjunction with video. Finally, the publisher of the song and the record label that controls the master recording may require a separate license.

It appears that the Trump campaign folded under the objections of Neil Young because, among other things, it is embarrassing to use a song to embody the message of a campaign by an artist that does not support the campaign. However, at least Trump got off relatively easy. Governor Scott Walker was not so lucky when he used a Dropkick Murphys song in his campaign without permission earlier this year. The Dropkick Murphys responded, “@ScottWalker @GovWalker please stop using our music in any way…we literally hate you!!! Love, Dropkick Murphys.”