The Copyright Conflict between Musicians and Political Campaigns Spins Around Again

Determining the effect of music on voters remains difficult.¹ Certainly, music possesses the power to inspire, motivate, and energize a campaign and the voting public.² The 2016 presidential campaigns continued the modern trend of seeking “inspirational” popular songs to rally voters across the nation.³ And, as in prior years, musicians voiced disapproval over the perceived “unauthorized” use of their songs and raised claims of copyright infringement. Neil Young, Adele, the Rolling Stones, R.E.M., Queen, Luciano Pavarotti’s estate, and Elton John, among others, asked Donald Trump to stop using their songs at his events. The Dropkick Murphys took to Twitter to scold Scott Walker for using their music. The techno duo Axwell & Ingrosso sent Marco Rubio a cease and desist letter for using their song “Something New.”⁴ Despite the many examples, political campaigns have grown smarter and tend to purchase a copyright license to use songs. Typically, however, political campaigns obtain such licenses through collective rights organizations without the knowledge of the musical artists; therefore, the negative publicity of disgruntled artists persists each election cycle. Of course, some campaigns fail to obtain a license, often resulting in a lawsuit for copyright infringement.

Copyright Laws Protect Musical Compositions and Sound Recordings

Copyright, a form of intellectual property, encourages artists to create works, and, in exchange, society inherits a vast public domain of art.⁵ To accomplish this, copyright laws grant certain exclusive rights to artists in original creative works fixed in a tangible medium for a limited time—generally, the life of the author plus an additional seventy years for works created after January 1, 1978.⁶ The rights apply automatically upon creation of the work, but once the term expires, the work falls into the public domain for all to use freely.⁷

The copyright laws include protection for music in two main forms. The laws grant creators of a musical composition (i.e., the notes and lyrics of a song captured in writing, sheet music, or recorded performances) the exclusive rights to reproduce and distribute the work, prepare derivative works, and perform and display the work publicly, with some exceptions.⁸ The law also grants creators of a sound recording of a musical composition (i.e., the performance of the musical composition by a recording artist that is fixed onto a record, tape, compact disc, video, or digital file) the exclusive rights to reproduce and distribute the performance, prepare derivative works, and perform the work publicly by means of a digital audio transmission.⁹

Due to the high transaction cost of individually licensing and enforcing these rights, Congress expressly transformed some rights into compulsory and statutory licenses that require payment of a codified fee to the copyright owner.¹⁰ As a result, most music creators assign their right to perform a musical composition to collective rights organizations, commonly known as performance rights organizations (PROs). In the United States, three PROs control most of the musical compositions: the American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music, Inc. (BMI); and SESAC Holdings, Inc. (originally the Society of European Stage Authors and Composers and known as SESAC). Sound-Exchange controls the digital public performance rights of most sound recordings. The introduction of digital recording and widespread use of the Internet provide artists with greater opportunities to remain independent and license their work independently.¹¹ Nevertheless, many composers and sound recording artists still sell or license their copyrights to others, namely, a publisher and a record label, which then own and control the distribution of the work, such as registering for a copyright, promoting the work, collecting royalties, and often providing an advance payment. The publishers usually hold the rights to reproduce and distribute a musical composition, and record labels generally control the rights to reproduce and distribute a sound recording.¹²

Campaign Rallies

For background music at live rallies, a politician need only acquire a public performance license from the copyright holder of the musical composition, not from the sound recording artist. Generally, a user may obtain such a license from a PRO...