New election, same tune

You can't always get what you want -- especially if you are a political campaign and what you want is to play hit songs at your rallies. Nearly every campaign cycle, we see the same story: popular musicians object to a campaign's use of their music... often on Twitter, but sometimes in court.

This election season, the Rolling Stones have threatened to sue the Trump campaign for using their music. In years past, a member of the band Survivor sued Newt Gingrich over his campaign's use of "Eye of the Tiger," the Foo Fighters protested John McCain's use of "My Hero," and Sam Moore asked Barack Obama to stop playing "Hold On, I'm Comin'" at rallies.

Music is a legal minefield. And to avoid a costly and potentially embarrassing misstep, campaigns need to be careful when building their playlists.

It's All About the Copyright

Under the Copyright Act, any user, including a political campaign, needs a license to use a song. In fact, a campaign might need multiple licenses depending on the type of intended use. There are two components underlying any song, both of which require licenses under certain circumstances: the musical composition (lyrics, musical score) and the particular sound recording of that composition.

A license is technically required to publicly perform someone else's musical composition, whether you are a musician performing a cover at a street fair, a radio station playing Drake's latest hit, or political campaign blasting Tom Petty in an airplane hangar. Those rights are licensed by performing rights organizations (PROs), such as ASCAP, BMI, SESAC and GMR, which collect royalties on behalf of their members, the songwriters and publishers who own the musical composition copyrights.

Often, a PRO provides a "blanket license" that grants access to the PRO's entire repertory. Big concert venues might have such a license, which permits performance of any songs in that PRO's repertory at the venue. This gets tricky when it comes to political rallies, though, because not all venues at which campaigns hold events necessarily have those blanket licenses, and those licenses that they do have might have carve outs for uses that are political in nature.

According to both ASCAP and BMI, their venue blanket licenses are not intended to cover performances at political events. Instead, ASCAP recommends that campaigns purchase special licenses for political campaigns. Under the terms of those licenses, ASCAP members may ask ASCAP to exclude certain songs from a license to any particular political campaign. BMI's "Political Entities License" also has a provision allowing BMI to exclude certain songs from the license if the BMI member objects to its use by a particular campaign. Once the PRO informs the campaign of the exclusion, the PRO views any further use of those songs as unlicensed.

If a campaign intends to use a song in an audio-visual manner, such as a political advertisement, then the campaign needs to obtain additional licenses beyond the applicable PRO license. It needs a synchronization license, which allows the campaign to "sync" the musical composition to visual content. Such licenses are obtained directly from the publishers or songwriters who own those rights. Likewise, if a campaign intends to use a particular recording of the song, the campaign likely needs a master use license to reproduce the sound recording. Master use licenses are typically obtained directly from the applicable record label. The owners of these rights have no obligation to grant synchronization or master use licenses, so they may restrict a campaign's use of their songs by simply refusing to grant the license.

That's Not Fair!

Absent appropriate licenses from PROs, publishers, record labels or musicians who control the rights at issue, a campaign may be vulnerable to a copyright infringement claim. A political campaign facing such a claim might raise the defense of "fair use." Fair use allows certain unauthorized uses of copyrighted works, for purposes such as criticism, commentary and artistic expression. Few courts have had occasion to determine the application of the fair use defense to political campaigns' uses of music, but the defense is far from a slam dunk.

For example, in Jackson Browne's 2008 lawsuit against presidential hopeful John McCain, the court held that the fair use defense did not bar Browne's infringement claim as a matter of law, and declined to undertake the fact-intensive fair use analysis until the factual record was more developed. The parties settled the case not long after. In a 2016 lawsuit against the political action committee Club for Growth Action for unauthorized use of a song in an ad, the court similarly declined to find the fair use defense barred the copyright infringement claim at an early stage of the case. And in Don Henley's 2009 lawsuit against a California politician, the court determined on summary judgment -- after the parties had exchanged discovery -- that the uses of Henley's songs were not fair, in large part because the politician profited from their use.

These cases demonstrate that, at the very least, a political campaign likely cannot rely on the fair use defense to quickly escape a copyright infringement claim.

But Wait... There's More

Even if a campaign's use of a song is legitimately licensed, the campaign is not necessarily in the clear. Claims under federal trademark law or state right of publicity laws can be effective means for musicians to object to campaigns capitalizing on their celebrity without permission.

For example, a musician might bring a claim for false association or endorsement under the federal trademark law called the Lanham Act. The results of such claims against political campaigns have been mixed. For example, in Browne's 2008 lawsuit, the court found the Lanham Act claim was viable. But in Henley's 2009 lawsuit, the court concluded that the campaign's use of Henley's songs could not give rise to a valid Lanham Act claim.

The court in Browne's lawsuit also found that Browne was likely to succeed on his right of publicity claim under California common law, in which he alleged that McCain used Browne's identity for his own advantage. However, some right of publicity laws explicitly exempt uses in connection with political campaigns, so these claims are not always viable options for a musician trying to restrict political use of songs.

Even though trademark and right of publicity claims might not be sure bets against a campaign's use of a song, the threat is serious enough that a campaign should consider seeking permission directly from the musician, even if the campaign obtained proper licenses under copyright law.

The Threat May Be Enough

Year after year, musicians cry foul when a campaign plays their song, and the campaigns usually do not put up a fight. Instead, the negative publicity associated with a popular musician's public disapproval of a campaign's use of a song -- and the threat of a lawsuit -- is often enough to make the campaign to skip to the next song on their playlist. 