We are in the heart of political primary season, meaning we have reached that time, as we do every four years, where politicians play rock songs during their campaign events, followed by musicians becoming irritated and lashing out at said politicians in the press.
Who is in the right here? Are the musicians being overly sensitive or are the politicians violating copyright law? We will have to unpack a few laws to find out. We will have to start at the primary point of reference for all good legal discussions, the U.S. Constitution.
Who regulates copyright laws?
Ah, it is time to get out your pocket constitution that I know all of you are carrying!1)I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once. In case you left your pocket constitution in your other pants, I will reproduce Article VI, Section 2:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (emphasis added)
Supreme huh? The courts interpret Article VI, Section 2, to mean that if the federal constitution expressly grants authority to the federal government to regulate a subject matter, than the states are preempted and may not pass laws regarding that subject area. If the constitution is silent regarding an issue, then the authority to regulate the matter belongs to the states.
So does the constitution grant authority to the federal government to regulate copyright law? Indeed. Let us look at Article I, Section 8:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Courts interpret Article I, Section 8 to mean that the federal government has exclusive rights to regulate copyright laws2)copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws.
What are the federal copyright laws?
Now we must examine the U.S. Code, in particular 17 U.S.C. 106 and 107:
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
§ 107: Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
As you can see, Section 106 grants an exclusive copyright to the author of a musical work to distribute the work as s/he sees fit. Political campaigns often cite Section 107 as an excuse when accused of using a song at a rally without consent of the artist. To see if their excuse holds water, we will need to review each of the four elements in more detail.
How Section 107 of the copyright law applies to music played at a political rally
- Purpose and character:
- This is an inquiry into how the copyrighted music is being used. Courts will often look to see if there is a transformative quality in the art's application. By transformative, I mean the use of the work that has a copyright changes or updates how the art was originally published. Additionally, courts will look to see if the copyrighted art is being used for profit or not-for profit. Although most candidates go heavily into debt on the trail, they are using the music for personal gain (power if not money), so this factor will not help.
- Neither have I seen a campaign transform any copyrighted music for their own devises, so this factor will not assist them.
- Is the copyrighted work creative or factual? Use of factual material is given more leeway. Courts will also look to see if the work is published or not; they will be more stringent with unpublished works as creators have the right to decide how and if to release their work product.
- These rock songs are creative works of art, hard to say the nature of the work supports campaigns using the music without permission
- Amount of the work used:
- Courts will look to see how much of a song is being played. Playing less than 30 seconds is more likely to be fair use, than playing the entire track.
- Yet another strike against the campaigns, unless the candidates want to start running to the stage before a speech.
- Effect on market value:
- Will the use of the song hurt the market value of the art? This is where the campaigns have the most trouble. There are few forums that are less ‘Rock and Roll’ than a political rally. If a musician cultivates a counter-culture image, then has a straight-laced3)square politician play his or her song, folks might think that the musician is endorsing this politician. If consumers think the artists is lame, that will hurt sales.
- Although it is possible for a campaign to use a song without issue under the ‘fair use’ doctrine, it is unlikely.
Will a Blanket License help protect them from copyright infringement?
For those music industry insiders, you already know of big corporations that license music on a mass scale. For the rest of us, a small primer. Most artists belong to one of big companies that license use of their artists’ music on a mass scale4)ASCAP and BMI are the two largest companies. They offer what is called a “public performance license” which allows venues to play the music of the company’s artists without copyright infringement. Many hotels, convention centers, and restaurants purchase one of these blanket licenses that permits them to play any of the company’s artists.
So you would think that many if a campaign held rallies at the large establishments as discussed, they would be protected from copyright infringement actions by the venues blanket license. However, in the contracts for the license, the music licensing companies explicitly prohibit the application of the license for conventions or rallies, meaning the music may be played in the hallways/elevators/common areas but not to heighten the experience of an event.
Additionally, many, if not all rallies, are posted online or played on television. These public performance licenses do not cover electronic dissemination, and the campaigns will need to get permission from the publisher. This means if a campaign posts a video of a rally with the candidate coming to the stage to the sounds of the hottest rock act going, they are in violation of the copyright laws.
In turn, campaigns will often buy their own blanket license so that they may play music no matter where a rally is held5)who is to say if your local Pizza Ranch is paid up on their music public performance license. Even this may not be sufficient, as you can see above.
Copyright, The Lanham Act, and Music and Politics
By now, you have got to be thinking to yourself, would it just be easier for the campaign to write an original jingle like they did in the old days?6)Come on, the “We like Ike” jingle was gold. The answer is probably. We cannot wrap up this discussion without the Lanham Act signed by President Truman:
15 U.S.C. § 1125 - False designations of origin, false descriptions, and dilution forbidden
(a) Civil action
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.
(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. (emphasis added)
This is similar to the fourth factor of the fair use doctrine. If a campaign was to use a song by an artist that did not like or endorse the politics of the campaign, subsection (A) would likely come into effect. That is why you often will see campaigns claim that they have a blanket license to use the music of the objecting artist, but will cease playing it at future rallies.
If a campaign does not want to write original music, the course of action7)as I am sure you guessed by now is to ask permission of the artist.
What have we learned about copyright law in relation to music and politics?
But given that musicians have been making the same complaints publicly every four years since the mid-eighties, is it safe to assume the politicians now know better and will ask permission of the artists to avoid public shaming?
Does not seem so:
— Dropkick Murphys (@DropkickMurphys) January 25, 2015
8)Is it worse to literally or figuratively hate someone?
Not to be outdone by Neil Young, who posted his thoughts on Donald Trump playing "Rockin in the Free World" during his Presidential announcement last month:
Yesterday my song "Rockin in the Free World" was used in a announcement for a U.S. presidential candidate without my permission.
A picture of me with this candidate was also circulated in conjunction with this announcement but It was a photograph taken during a meeting when I was trying to raise funds for Pono, my online high resolution music service.
Music is a universal language. so I am glad that so many people with varying beliefs get enjoyment from my music, even if they don't share my beliefs.
But had I been asked to allow my music to be used for a candidate - I would have said no.
I am Canadian and I don't vote in the United States, but more importantly I don't like the current political system in the USA and some other countries. Increasingly Democracy has been hijacked by corporate interests. The money needed to run for office, the money spent on lobbying by special interests, the ever increasing economic disparity and the well funded legislative decisions all favor corporate interests over the people's.9)Source
Sounds like just the kind of person you want to represent your mainstream candidacy for the Presidency! Of course, many media outlets picked up on Mr. Young's comments, bringing unnecessary negative attention to the campaign. I am hard pressed to think of examples when asking permission would lead to a less desirable result. Here is more reading on music and political rallies10)my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead's "Electioneering" as a campaign theme.
|↑1||I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once|
|↑2||copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws|
|↑4||ASCAP and BMI are the two largest companies|
|↑5||who is to say if your local Pizza Ranch is paid up on their music public performance license|
|↑6||Come on, the “We like Ike” jingle was gold|
|↑7||as I am sure you guessed by now|
|↑8||Is it worse to literally or figuratively hate someone?|
|↑10||my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead's "Electioneering" as a campaign theme|