Are Politicians Allowed to Use Songs Without Permission?

Every four years or so, a few musicians cause a stir when their music is played at political rallies as politicians often use songs without permission.

use songs without permissionOften times, any legal threats dissipate before they make it to court, but if a judge were to rule on such a case, there’s a chance the politician could be the favorite to prevail.

As election season kicks off again, another musician has protested the use of one of his songs at a campaign rally. Businessman, Donald Trump, recently announced his own candidacy for president of the United States, and during the event, he blared Neil Young’s “Rockin’ in the Free World.” Young did not approve. There has been speculation over whether the musician will take legal action against Trump for the use of his song, but this discussion isn’t a new one.

Other incidents

In 2008, Jackson Browne, Jon Bon Jovi, Heart, Foo Fighters, Van Halen and John Mellencamp were among the artists who complained about the use of their songs at McCain-Palin events, The Hollywood Reporter explained. Rapper K’Naan wasn’t happy with Mitt Romney using one of his songs in 2012 – the same year that Michele Bachmann received a letter from Tom Petty over his “American Girl.”

As fiercely as these crops of musicians pop up each election cycle to protest the use of their songs, they often disappear. Politicians offer to stop using the songs, settlements are reached and, as a result, there isn’t much legal precedent for whether a musician would actually win a lawsuit over the use of his or her song at a campaign. When it comes to commercials, politicians do have to get permission from artists, according to ASCAP guidelines. However, the use of songs at campaign rallies is less clear.

Chuck DeVore suit

One case between a candidate and a musician did end with a judge’s opinion, and though it differs slightly from instances of politicians using music at rallies, the opinion does offer some insight into how a lawsuit would progress – and it may not end well for the musician.

In 2010, Don Henley won a lawsuit against California senatorial candidate, Chuck DeVore, and campaign manager, Justin Hart, over their use of two of his songs. To be clear, there are significant differences between Henley’s suit and the one Young would file against Trump, if he decided to of course. DeVore took two of the former Eagles members’ songs and rewrote the lyrics in a satirical manner to reflect his campaign messages. This, of course, wasn’t a fair use of copyright, and Henley won the case. However, the judge was a bit more dismissive of the musician’s arguments regarding the Lanham Act.

The act prohibits “false designations of origin, false representations and false representations in the advertising and sale of goods and services,” according to the summary judgment for Don Henley et. al v. Chuck DeVore et al. False endorsement has been recognized under the Lanham Act for unpermitted copying of “distinctive attributes where those attributes amount to an unregistered commercial trademark.”

Other factors to consider

In this case, the defendants argued that the songs used did not contain any of the “distinctive attributes” that would constitute a trademark, such as “a word, symbol or device” used to identify or distinguish them. Additionally, the court found that DeVore and Hart were not attempting to pass the songs off as actually performed by Henley. If they had been attempting to convince people that Henley had sung the song, then their commercials would have violated the Lanham Act.

Still, politicians who wish to use certain songs in their campaigns should be smart about how they do it. For example, checking to see if the venue has a blanket license to use songs is a wise move, NPR explained. While most larger locations do have such licenses, smaller venues may not, making it illegal to play some songs at them. Also, musicians might claim that their brand is being hurt by politicians’ use of their songs. While this argument is tenuous, NPR noted, it is best to avoid such situations. For advice on whether to use a song during a campaign, or whether a song has been used illegally, it would be helpful to consult an attorney with experience in these areas.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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