Musicians and politicians have often fought over whose music is played at political rallies. A Northeast law expert explains how music is played at these events –– and what musicians do to push back.
The Republican National Convention is in full swing, with the party's presidential nominee, former President Donald Trump, and vice president, J.K.
But even with wall-to-wall news coverage of the event, one thing often gets lost when it comes to these kinds of high-profile political events: Whose music is blaring over the loudspeakers?
It turns out that the music played at a political rally or campaign event involves more care –– and legal expertise –– than you might think. It's an area where law, performing arts and politics intersect in sometimes uncomfortable ways, particularly for a politician like Trump, who has entire Wikipedia page dedicated to recording musicians who object to the use of their music.
So what rights do politicians have when it comes to playing music during rallies, conventions or campaign events? The answer, he says Alexandra Robertsprofessor of law and media at Northeastern University, it's a little complicated.
A politician can't just play whatever song he wants because he's in a public place. Like any other type of event, political campaign organizers must secure a license to obtain the right to perform a song in public.
“They have to pay for it. they have to get those permits,” says Roberts. “Normally, event organizers secure permission from rights holders and need to make sure the permission covers the songs they want and doesn't exclude political use.”
Public venues such as stadiums or arenas have usually already secured their own public performance licenses from performing rights organizations such as the American Society of Composers, Writers and Publishers. These licenses include access to hundreds of thousands of songs and usually apply to any event organizer using that space, whether it's a sporting event or a performance.
However, these licenses generally exclude political events, so campaigns will need to get their own license from an organization like ASCAP or go directly to the record label or whoever owns the copyright to obtain the rights to a particular song. says Roberts.
Since much of this process is mediated by record companies and organizations like ASCAP, Roberts notes, it rarely involves the music artists themselves, where things get hotly contested.
A musician can feel ownership of a song –– even if their record label owns the rights to the recording –– at the same time that a venue or event organizer has jumped through all the hoops to get the licenses and permission they need. to play that song.
“You can be a world-famous musician and artist and you can stand there and say, 'Well, I never gave Donald Trump my permission to play my song at his political rallies,'” Roberts says. “If you're not the copyright holder, then it doesn't really matter.”
Instead, artists have found other ways to challenge the use of their music in political campaigns they may not necessarily support. In the case of Aerosmith's Steven Tyler, that meant filing a cease and desist order.
Another avenue artists have tried is to claim false approval under the Lanham Act, the federal trademark statute in the US, Roberts says.
“The idea is that the political use of a song will create the impression to consumers that the artist actually endorses that politician, agrees with that use, is a fan of that message,” Roberts says. “If a politician really associates a song with their image or with their message, like they're using it as their soundtrack all the time … then I think false claims of support are possible. False endorsement is based, in part, on consumer perception.”
In other cases, musicians have tried to argue using the right of publicity, the state law that prohibits the commercial use of someone's name, image or likeness without permission. Roberts says there's a bit more gray area here because this argument raises the question of whether civilian use qualifies as commercial use under US law.
Given all the legal complications that can arise from simply choosing a song to play at a political rally, it's understandable why the RNC chose to use a band cover on stage. Roberts says it's “an interesting way to get around some of those requirements.”
“If the band is playing covers then they can avoid using recordings and so they wouldn't need permits to perform recordings, but they would still need a PRO [performing rights organization] permission for the space,” says Roberts. “Playing covers helps avoid the PR problem… because I would expect the musicians to be less angry [or] offended when they discovered that a song they recorded was played by someone else, instead of their recording of the song, in their voice, being used at a rally for a politician they disagree with.”
However, Roberts points out that sometimes these copyright and trademark issues surrounding music at political rallies are settled in ways that don't involve the law at all. Even if a politician like Trump does everything he can to get the right license, “sometimes musicians will take these actions and make these proclamations not because there's a lawsuit they can win, but because they want to make a statement.”
Often, a political statement can be more powerful than any letter of the law when it comes to settling these matters. When Trump tried to use Bruce Springsteen's “Born in the USA” for campaign rallies in 2016, instead of going to court, Springsteen supported and campaigned for Trump's opponent, Hillary Clinton. The end result: Trump supporters began booing the song at rallies.
“You don't always need a winnable case,” says Roberts. “You don't always have to show copyright infringement or false endorsement. Sometimes his threat can get you what you want.''
