For Political Campaigns
As the campaign season kicks into high gear, candidates and their campaigns may have questions regarding the use of music recordings and their underlying compositions. Provided here is a simple primer on the legal and ethical considerations for use of these works. While this document intends to offer useful guidance, it is important to keep in mind that context is crucial and different rules apply in different scenarios. Each situation must be considered within its unique setting.
Campaign Events—Rallies, Fundraisers, etc.
Can a candidate use a song at a campaign event in front of the crowd before the candidate arrives?
When music is played in public, such as at a campaign event, it is typically necessary to obtain a license for the musical composition (words and music). It is not necessary to obtain a license from the owner of the sound recording (usually a record label).
The musical composition license is usually issued by a performing rights organization (“PRO” – such as ASCAP, BMI, SESAC and GMR). The license can be obtained by either the campaign or the venue (e.g., hotel, restaurant, stadium). Venues usually pay periodic licenses to cover any performances of all the songs in a PRO’s catalog.
If this is not the case and a campaign itself pays, a license can be obtained for a specific venue event, or can cover a campaign’s events wherever they may take place (known as a “traveling license”). If a campaign wants to use a particular song, it should check to confirm that it has a license from the PRO that administers rights in that song (PRO databases are typically available online).
Can a candidate walk on stage to a song at a campaign event? Can he/she use the song at a key moment of a speech or presentation, including at the end?
As explained above, as a matter of copyright law, it is only necessary to obtain a license from the owner of the musical composition for these live events. However, some artists, performers or composers might assert non-copyright claims (false advertising, right of publicity, defamation, or false light) on the theory that the campaign has falsely implied that the artist, performer or composer has endorsed the candidate.
Can this be done repeatedly to make a song into one of his/her “theme songs” for a campaign?
Risk increases substantially if a campaign uses a song repeatedly (e.g., the same song is played every time a candidate enters a rally) such that it becomes known as a campaign’s “theme song,” suggesting a close association between the song and a campaign. If a candidate wants to use a particular song or recording as a theme song, it would be prudent for permission to be sought in advance.
Can a candidate use a song in radio or television ads, or in videos posted on social media sites like YouTube or a personal website?
- A campaign must obtain permission from the owner of the musical composition (usually a music publisher). This is known as a “synch license.”
- In addition, if a campaign wants to use a specific recording of the song (e.g., Survivor’s recording of “Eye of the Tiger”), then the campaign must obtain permission from the owner of the sound recording (usually the record label). This is known as a “master license.”
- Typically, the publisher and record label will check with the writer, composer or artist to see whether they object to the use of the song in this context.
- In addition, a performance license is needed when that clip is played over the radio, TV, Internet, etc. for the musical composition. That may be obtained through the music publisher directly or through their designated performance rights organizations ASCAP, BMI, SESAC or GMR.
- Finally, since music has intrinsic value, a campaign should consider whether use of a song (including the sound recording and musical composition) follows relevant federal or state ethics and campaign rules. Even if permission is granted by the copyright owner, some guidelines require commensurate payment to avoid violation.
What if the ad or video includes a clip of the candidate at an event with a song playing in the background?
The public performance license obtained for use of the song at an event does not carry over to inclusion of the event in a video or clip. While a case-by-case analysis may consider the amount of the song incidentally playing in the background of the clip, as a general rule a campaign still must obtain a “synch” or “master” license for inclusion of the song in an ad or video. And, again, a performance license is needed for the musical composition within the ad or video to be played over the radio, TV, Internet, etc. (generally obtained through ASCAP, BMI, SESAC or GMR). In most instances, a performance license is also needed for the use of a specific recording of the song within the ad or video (though this license is usually included in the “master” license.)
Can a candidate change the lyrics to a song in order to support his/her own candidacy or to criticize another candidate?
While some campaigns have claimed that such a use is a “parody,” protected by the fair use doctrine and the First Amendment, courts are more likely to view such uses as satire, unprotected by fair use or the First Amendment.
Such uses are very risky if done without permission from the owner of the musical composition and sound recording (if a particular recording is used).
Can a candidate use the lyrics or title to a song as a campaign theme or mission?
A campaign must obtain permission from the owner of the lyrics (usually a music publisher). While titles are generally not copyrightable, some artists/performers/composers might assert non-copyright claims (false advertising, right of publicity, defamation, or false light) on the theory that the campaign has falsely implied that the artist/performer/composer has endorsed the candidate.