It’s campaign season, which means politicians are stumping all around the country trying to win your vote. Candidates do this through a number of methods – television commercials, rallies, buttons, you name it.  Politicians want you to emote. They want to elicit emotions that range from excitement to vitriol. And ultimately, they want to channel your emotion into votes and donations.

One of the most effective ways for politicians to get your emotional buy-in is through music. But many popular musicians don’t like their work being associated with politicians, particularly conservative ones. This election, Donald Trump has already received complaints from nearly a dozen artists, ranging from Queen to R.E.M. to the estate of Luciano Pavarotti, all of which call use of their music by his campaign “unauthorized.”

There was even a vignette on Last Week Tonight with John Oliver making fun of the Republican National Convention’s music choices and featuring a cast of aging pop idols demanding politicians stop using their music “without permission.” Aptly titled, “Don’t Use Our Song,” Usher, Cyndi Lauper, Josh Groban and company belt out the reasons (or lack thereof) why their music shouldn’t be used by campaigns.

Republican politicians have been getting into trouble for music uses since “The Boss” went after Ronald Reagan for playing “Born in the U.S.A.”  Indeed, the sleuthy folk at FiveThirtyEight found that about 93 percent of music usage complaints against presidential candidates were made against Republicans.

But here’s the problem: under U.S. copyright law, campaigns can use music as much as they want at their events without explicit permission of the artist, so long as they purchase a “blanket license” from performance rights organizations (PROs) like the American Society of Composers (ASCAP) and Broadcast Music Inc. (BMI). John Oliver and friends have their basic facts wrong about how “permission” works in the music industry.

While artists can publicly shame a politician into not using their music, like the many angry tweets directed at The Donald, they have no legal remedy under copyright, so long as the campaign gets the proper license (as nearly all of them do) for their event.

Notably, adding a song to a video is another issue, since there’s no compulsory license for synchronization rights. Nonetheless, conservatives are frequent targets. This got the presidential campaign of Sen. Ted Cruz, R-Texas, into trouble when one of his vendors failed to procure the proper licenses for background music in his videos. So the next time Sen. Rand Paul, R-Ky., wants to upload a chainsaw video to YouTube with a rock song in the background, he will need to negotiate a master-use license for the sound recording and a synchronization license for the composition (or just give up and get it from a stock music service).

While video cases are clearer cut, there’s still a danger of getting into trouble without directly doing anything wrong.  The most notable example of this was the saga of Jackson Browne and the 2008 presidential bid by Sen. John McCain, R-Ariz., which used the song “Running on Empty” without the proper license (why you’d want to use that particular song, with its message of utterly spent energy, in your campaign is a mystery). Even though the senator had no knowledge or involvement in the creation or distribution of the offending video by the Ohio GOP, he got dragged through the mud and the Republican National Committee was forced to settle for an undisclosed sum of money.

More recently, artists have had the option to withdraw permission from political candidates who already obtained a blanket license to use their songs. During the 2012 campaign season, BMI created a separate license for “political entities or organizations” (ASCAP has its own version). It comes with a catch, in that it allows musicians to withdraw rights to a song for any reason. This is unusual, since licensing under a PRO is normally on an “all in or all out” basis (since it’s a compulsory blanket license under a consent decree from the U.S. Department of Justice). Blanket licenses, by definition, don’t normally let you opt out.

This clause was invoked following the Republican National Convention in Cleveland, when Queen pulled Trump’s right to play “We Are the Champions.” However, the Quicken Loans Convention Center also had a license to play songs in BMI’s catalogue, with no such opt-out clause. Theoretically, Trump could go to any other venue with such a blanket license and play the song without infringing copyright since Queen already had assigned the rights to public performances of their songs to BMI.

Nonetheless, even if an artist has bought into the bulk-licensing system and assigned control of their rights under copyright, they still have some powerful tools to go after users with whose political speech they don’t agree. Beyond copyright, there are at least three other avenues an artist can pursue to thwart unwanted use of their songs. According to ASCAP guidelines, these are (links added):

  1. The 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; and
  3. False Endorsement, wherein use of an artist’s identifying work implies the artist supports a product or candidate.

These are designed to give artists the ability to protect their brand and reputation. But does anybody really think the late Freddie Mercury is endorsing Donald Trump because a Queen song was played at the Republican convention? Or that people will buy fewer albums because of it? Music use is ubiquitous, and we are used to hearing it in any number of contexts without assuming there’s some sort of endorsement.

Just because you don’t agree with someone does not mean you are no longer bound to an agreement you previously made to license your musical works (or allow others to license it on your behalf). When licensing rights are assigned to a PRO, they ought to allow the PRO to license their music to anyone, for any purpose. This is generally a good deal, because PROs facilitate low-friction transactions, streamline the distribution of royalties and help create a broader market for an artist’s work. In other words, blanket licenses help artists get their music played by bars, restaurants, retail and, most importantly, digital and broadcast radio. It’s not a model free market by any means, but it basically works.

Roughly 74 percent of political donations from people in television, music and the movies went to Democrats during the 2014 election. While this kind of political bias in the entertainment industry shouldn’t be surprising, it ought not affect the even-handed enforcement of the law. Yet in this case, politics is inarguably a determining factor.

No matter what one thinks of Donald Trump, he doesn’t deserve to be called out by artists (or John Oliver) for “unauthorized” use of their music at his campaign events. Nor do conservative politicians deserve to be the frequent targets of such allegations – and corresponding headlines in the popular media – misrepresenting how the law works or suggesting they don’t properly license the music they use, even when they do. This is not the baker objecting to catering a gay wedding. This is the baker selling to a wholesaler, then objecting to a gay couple purchasing one of his cakes at Safeway.

It’s perhaps unfortunate that there aren’t that many conservative rock stars (or maybe they’re just too embarrassed to come out). But as a society, do we really want Republicans to be relegated to playing Kid Rock and Meat Loaf at their next convention?

Photo by Joseph Sohm / A version of this article was originally published in Bloomberg.

Featured Publications