by Kevin Erickson & Bryce Cashman

Notable businessman and reality TV star Donald Trump announced his entrance into the 2016 presidential race yesterday, to the delight of late night comedians everywhere. Less delighted was veteran rocker Neil Young whose 1989 song “Rockin’ in the Free World” was played repeatedly at the launch event, in the latest in a long string of conflicts between artists and politicians over the use of music in campaigns.

Young’s management released a statement saying:

“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.

These kinds of conflicts seem to reliably come up in every campaign cycle. Back in 2012, we catalogued a long list of musicians who expressed objections to how their work was used. Rapper K’naan and rockers Survivor and Silversun Pickups all had gripes with use of their music by Mitt Romney, Tom Petty objected to Michelle Bachman’s use of “American Girl,” and Twisted Sister battled Paul Ryan over “We’re Not Going To Take It.”  Before that, Sarah Palin came under fire from the band Heart in 2008 over her use of their song “Barracuda.”

But this particular incident perhaps most closely resembles Ronald Reagan’s infamous use of the widely misunderstood Bruce Springsteen classic, “Born in the U.S.A.” Like “Rockin in the Free World”, that song amounted to a blue collar critique of conservative policy; the central irony of Young’s anthemic chorus was perhaps similarly lost on Mr. Trump. 

So when do politicians have to get permission to use artists’ work? How does the copyright holder protect against unlicensed uses? What if the artist does not support the candidate’s ideas? The answers can vary for different kinds of uses.

Licensing for public events like rallies is relatively straightforward. When a song is played at a rally, a candidate must ensure that they have a public performance license covering the song. Most major public venues (arenas, conference centers, hotels, etc) typically purchase blanket licenses from performance rights organizations (ASCAP, BMI, SESAC) allowing campaigns to “publicly perform” any song in their repertoire of which includes the vast majority of compositions; these licenses may not cover all uses so campaigns can also purchase their own blanket licenses. Indeed, Trump’s team asserted that they had such a license from Young’s preferred performance rights organization, ASCAP, clearing the use of the song.

But just because a candidate has obtained a blanket license to play a song doesn’t mean they’re out of the woods, legally. Candidates could still face potential legal action from annoyed artists under legal provisions unrelated to copyright, such as right of publicity, trademark dilution under the Lanham Act, or false endorsement. ASCAP has a very helpful factsheet. 

Such suits can be expensive and rarely make it to trial, but if a politician wants to keep headlines focused on his/her policy positions rather than angry musicians, it’s a good policy to ask artists’ managment before a particularly high profile use (such as repeatedly playing a song during a campaign launch event) even if you have the appropriate licences from rightsholders. 

Other kinds of uses require more involved licensing. Using a song in an online video advertisement, for example, would require multiple kinds of licenses, including public performance licenses for the composition, public performance license for the sound recording, and a synchronization license which must be negotiated with the rightsholders for both. Former Florida Governor Charlie Crist failed to obtain these permissions for a 2010 ad featuring the Talking Heads song “Road to Nowhere” which resulted in an unspecified settlement and a fairly humiliating apology video.

Another campaign music mishap occurred earlier this year when, Sen. Rand Paul (R-Kentucky) featured “Shuttin’ Detroit Down”, the anti-Wall Street anthem by country star John Rich, during an online broadcast of his campaign announcement event. The video, which was uploaded to YouTube, was subsequently blocked by Warner Music Group, via YouTube’s Content ID system, which automatically matches uploaded videos to a database of copyrighted works, and affords copyright holders the option of blocking uploads of their repertoire if a match is found. 

Some critics of YouTube’s Content ID system highlighted this incident to argue that Content ID amounted to allowing big rightsholders to premptively inhibit free speech, or indicative of copyright overreach. This concern seems misplaced. For news organizations which regularly cover political rallies, a solid fair use exception exists: the recording of the song is considered incidental background noise. But for official campaign communication channels, licenses are necessary for the broadcast of the sound recordings. It’s conceivable that licenses were obtained and that WMG’s tech team was never notified so they could keep the automated system from flagging the launch video, but in any case, Paul’s campaign quickly uploaded a version with the offending music track excised.

The frequency of these sort of controversies speaks to music’s enduring power as a vehicle for communicating our greatest hopes and aspirations for our country, for advancing social critiques, and for inspiring and motivating voters. It’s a good practice to respect that power by making sure that musicians are comfortable with how their creative work is used. But more importantly, we’d suggest that candidates of any party should be fundamentally concerned with the needs and perspectives of musicians on the full range of policy issues that impact their lives and livelihoods.

photo: lev radin / Shutterstock.com