Political rallies/campaigns/etc and songs

[bclintonk]

Copyright is one thing, but other issues may be involved if a political campaign appropriates a particular performance of a particular song as its campaign “theme song.” Think here of FDR’s use of “Happy Days Are Here Again,” or Bill Clinton’s use of Fleetwood Mac’s “Don’t Stop Thinking About Tomorrow,” or Barack Obama’s use of Stevie Wonder’s “Signed, Sealed, Delivered.” I assume these particular uses either were authorized or the artists didn’t object, because they continued throughout the candidates’ respective campaigns. But unauthorized use in that manner could in some states violate the musician’s right of publicity, or possibly give rise to a claim of trademark dilution under the federal Lanham Act. The problem is that this sort of repeated, high-visibility use of a particular song by a particular artist may create the false impression that the artist is endorsing or somehow connected to the candidate or the campaign. That’s not a copyright issue. Copyright licenses can cover the playing of random songs at campaign events. They don’t cover anything that smacks of an endorsement.

Here’s what ASCAP says about it:

Q: If musical performances at campaign events are properly licensed, can the campaign still be criticized or even sued by an artist for playing his or her song at an event?

A: Yes. If an artist does not want his or her music to be associated with the campaign, he or she may be able to take legal action even if the campaign has the appropriate copyright licenses. While the campaign would be in compliance with copyright law for playing the music, it could potentially be in violation of other laws. Specifically, the campaign could be liable under any of the following claims:

1. “Right of Publicity”, which in many states provides image protection for famous people or artists.
2. The “Lanham Act”, which covers the confusion or dilution of a trademark (such as a band or artist name) through its unauthorized use.
3. “False Endorsement” where use of the artist’s identifying work implies that the artist supports a product or candidate.

As a general rule, a campaign should be aware that, in most cases, the more closely a song is tied to the “image” or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song’s usage in the campaign.