With Election Day rapidly approaching, campaigning has become fierce. From President Donald Trump and Joe Biden down to Congressional, State Legislature and local candidates, everyone is blasting out their “message.” One way politicians like to get their messages across is by music. Snippets of songs create earworms that voters begin to associate with certain candidates — so why wouldn’t a candidate use music in their messaging, especially anthemic songs like Bruce Springsteen’s “Born in the USA,” Neil Young’s “Rockin’ In the Free World,” or Tom Petty’s “I Won’t Back Down”?

While candidates love the association a song gives voters, often the artists do not. Every election cycle contains at least a few artist/politician disputes over use of music. How is this controlled and who has the right to control when and by whom music is used politically?

Copyright Law

Copyright protects original expressions reduced to tangible form. This includes music, both recorded and written, lyrics, and the song composition or arrangement. For a given piece of music, there may be several different copyright owners — the songwriter may own the lyrics, the composer may own the score, a record label or publisher may own the recorded version of a song. Copyright gives the owner of the expression the right to control copying, distribution and even use of copyrighted material in particular circumstances.

How does this play in to political marketing and who controls the use of songs?

First, to use any song for almost any reason, some permission, or license, is required. Using copyrighted material without permission could constitute infringement. What type of license is required depends on the ultimate use of the song. For recorded music, a license from the owner of the recording is needed. This could be the record label or a publisher. However, much music is covered by blanket licenses with entities like the American Society of Composers, Authors and Publishers (ASCAP) or Broadcast Music, Inc. (BMI). Then, once a license is secured, the politician will have to look to see if there are any limits, exclusions or prohibitions against use of the licensed song for political purposes.

If the terms do not prohibit use in political ads or at rallies, then can a politician use the music?

While the copyright license may not prevent use, there are other rights at stake. For example, an artist has a Right to Publicity, which allows him/her to control use of their image. If an artist does not want to be affiliated with a politician, the artist could claim a violation of this right. Also, artists, especially bands, may have trademark rights in their names. For instance, U2 is a registered trademark. The owner of a registered trademark can prevent others from using their trademark to imply endorsement or affiliation. So, if a band disagrees with someone’s politics, they could claim use of their song creates a false endorsement. With these rights, as well those provided by copyright, an artist has several ways to prevent political use.

While Copyright Law, Right of Publicity and Trademark law are relevant, there is also the Court of Public Opinion and candidates do not like the bad press that comes with using a song without authorization or backlash that could come from attacking an artist. Given this, when there are disputes, they usually resolve quickly.

Those needing copyright assistance may contact me at mark.nieds@henlaw.com or by phone at 239-344-1153.