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(Update [7/7/2011]: The description of Jackson Browne's suit against former presidential candidate John McCain, and the court's holding, were initially inaccurate. Sen. McCain's campaign did not produce the ad [it was produced by a GOP group based in Ohio] and the court declined to rule on its fair use status. The post below has been updated accordingly.)
If you think the recent set-to between Tom Petty and GOP presidential hopeful Rep. Michele Bachmann (R-MN) sounds familiar, you’re not alone. The scuffle over Bachmann’s use of “American Girl” is hardly the first time a politician has come under fire for using a song without the artist’s permission. Backlash from angry artists has left candidates from 1996 Republican presidential nominee then-Sen. Bob Dole (Sam & Dave’s “I’m a Soul Man” in 1996) to then-Sen. Barack Obama (again Sam & Dave, this time with “Hold On, I’m Comin’” in 2008) singing the blues.
Remarkably, in many cases the artist lacks legal standing to prevent the use of his song on copyright grounds. He does, however, have a number of other rights of action, as well as the pedestal from which to generate bad publicity.
The fallout from these incidents is messy, but entirely avoidable with a little footwork and know-how. So, to all politicians: keep this checklist handy. You’re about to get a crash-course in how to avoid eliciting an angry public statement from a pop icon.
1. Know the legal terrain (a.k.a. “Musical Copyright 101”)
What most people think of as a song is, in the eyes of the law, actually two things: a composition, and a recording. If you’re going to use music in your campaign stop, you first need to figure out who owns each part. Do this ahead of time and it will save lots of trouble later.
The composition (which under the law is a “musical work”) is the song, divorced from any particular performance. Songwriters retain a copyright in their compositions. By way of example, Bob Dylan, as the original songwriter, retains a copyright in the composition of “Blowin’ in the Wind” regardless of whether it’s performed by the Chad Mitchell Trio, Neil Young, or Peter, Paul, and Mary.
Particularly important is the right of performance, which the law attaches to a composition copyright –in essence, the right of the composer to be paid whenever the composition is publicly performed.
The actual recording, on the other hand, carries its own copyright apart from the composition. This copyright is assigned to the person or group that “fixes” (i.e. takes down) the recording, and is usually held by the record company. Unlike composition copyrights, sound recording copyrights only come bundled with a right of performance when they’re broadcast digitally. This has a lot of implications for online political videos, as we will see later.
And the recording artists? Most commonly, they don’t retain any copyright or related rights in their work. They do, however, retain "rights of publicity," and a host of tangentially-related rights that could lead to litigation. These are discussed more in depth below. However, it’s important to remember that in many cases – including both of Bachmann’s recent set-tos – the recording artists were also the songwriters.
2. Pay for any relevant performance rights
Any public performance means that a candidate must pay the composer of the work. Performance rights grant the composer the legal right to compensation whenever one of their works is played publicly. Nearly every American composer is represented by one of two performing rights organizations, or PROs: Broadcast Music Incorporated (BMI), or the Society of the American Society of Composers, Authors, and Publishers (ASCAP). These groups negotiate and accept payment on behalf of the songwriter, eliminating the need to obtain personal approval from the composer himself. This simplifies the process and provides the added benefit that candidates don’t have to work around a composer’s particular political views at this stage of the game.
As mentioned above, no performance right is attached to the actual sound recording, unless it’s broadcast digitally. If the rally will be strictly live, then there’s no need to contact the record company at this point. If there’s an online video component, a whole separate set of rights is brought into play.
3. Check with your venue
Most major arenas and other venues that host campaign rallies also host musical performances. These almost always have blanket licenses with ASCAP and BMI, which let anyone using the venue play any song without having to individually clear the rights with the songwriter. Most cases of angered artists arise from situations involving these blanket licenses; technically speaking, the candidates were often within their legal rights under copyright law. But artists are political beasts too, and a campaign staffer failing to pick up the phone and call the artist to ask permission – even as a formality – can lead to its own set of problems, with artists then going public and complaining about the campaign's use of a song.
Now obviously, if your rally is held in Farmer Bob’s cornfield, you won’t have the legal protection of a blanket license. The moral of the story nevertheless holds true: always check your venue’s licensing status.
4. Check with the artist
Although venue blanket licenses often shield campaigners from copyright lawsuits, they don’t preclude all other associated legal claims that an angered artist could raise, including violation of his right to publicity and a claim that, by using the song, a candidate has misappropriated his (or her) work. Many cease-and-desist letters sent by artists to campaigns include these kinds of claims, arguing that the candidate has misused the artist’s identity and created a false impression of endorsement, among other assertions. Both claims are governed by a complicated patchwork of state laws.
It’s unclear how well such claims hold up in court, as the few instances of actual litigation over them have all been settled out of court. Moreover, laws governing the right to publicity are also highly localized, meaning any candidate would have to navigate a patchwork of state rules and exceptions. All things considered, the easiest way to avoid these claims is to negotiate with the artist directly.
5. To YouTube, or not to YouTube?
Most disputes stem from a song’s use in the context a live campaign rally. In these cases, the campaign is either under a blanket license provided by the venue, or else is legally obligated to clear the rights to the composition (but not the recording) by negotiating with the songwriter and to pay the performance fee to the songwriter’s PRO. The recording artist has no legal standing to stop the use of the song (under copyright, at least) and while it’s generally poor form to use the work of a singer who publicly despises your politics, it’s not illegal under copyright law.
Once the Internet gets involved, though, things become messy. As mentioned earlier, audio recordings carry their own right of digital performance. If a candidate wants to post anything involving music (an ad, or even a video of the rally including a music clip) online, they may now owe money to the owner of the sound recording copyright as well.
The context of the music matters as well. If the music is directly synched with the action, a separate synchronization license – which requires the approval of both the songwriter directly, and the recording’s copyright owner – becomes necessary. This was underscored in a recent suit between Jackson Browne sued Sen. John McCain (R-AZ), where the court declined to rule on whether inclusion of Browne's "Running on Empty" in a web clip produced by an Ohio GOP group supporting McCain's campaign was entitled to fair use protection.
If a song appears incidentally in the background of video coverage of the rally, it would likely be fair use. However, fair use is full of gray areas, and there’s no guarantee that you won’t be sued regardless. While you may be in the legal right, the state of fair use means that putting it online in the first place is, unfortunately, something of a gamble.
Granted, the web of rights and norms surrounding copyrighted music can be intimidating, and it’s a fact of politics that, on occasion, an artist will object to a politician’s use of his song. But there is no unwritten rule that every such use ends in an angry statement or legal action. Diligence and a willingness to reach out to the creative forces involved can not only provide a legal shield, but can prevent a public relations blow-up.
The public relations blow-up that occasionally follows, on the other hand, can be largely avoided by diligence and a willingness to reach out. If you do that, you should still prepare for a possible “no”; but given the bad press, possible legal action, and artistic backlash that could follow otherwise, your best bet is to be proactive.