There are two weeks left to go in the Presidential campaign, and that means one thing: More time for musicians to get annoyed when a politician whose views don’t jibe with theirs to get annoyed about what they see as “misuse” of their songs! In anticipation of this happening at least three more times before Nov. 4, we asked our official house counsel, John P. Strohm, for his legally considered opinion on the subject. After the jump, he talks about the nitty-gritty of song licenses, and whether Dave Grohl should have even bothered coming out of retirement to complain about John McCain’s use of the Foo Fighters’ “My Hero.”
I’ve been keeping up with this issue since the convention, and one consideration is what is covered under the blanket licenses with the performing rights organizations (“PROs”) such as BMI, ASCAP and SESAC. Most songs that are commercially available are within the library of one of the PROs. Generally, businesses such as venues (and, as I understand it, the McCain campaign) maintain “blanket licenses” with these organizations, so for a fee they have the right to play most songs publicly at events they hold.
Then there are synchronization or “synch” licenses, which permit broadcasters such as T.V. networks to sync their programming to a specific song. But in the case of, say, the convention, a television network probably doesn’t have to get a sync license if the songs that are being played are incidental to a news broadcast. The campaign probably doesn’t have to come out and get a license for its use.
But if the campaign was planning on using a specific song such as in an ad, then, yes, a master use license for the recording and sync license would be required. The master license is usually acquired through the record company, and the song license through the publisher and the writer. Since it must clear both sides, the McCain campaign can’t use a cover of “My Hero” done by, say, Alter Bridge. That takes care of the master side but not the synch.
The X Factor here is this: When the song is used in a political campaign, it’s different from a typical performance at something like a sporting event: it smells like an actual endorsement, which would require additional licensing. There may be an argument on the part of the rightsholder that this particular use requires a license beyond the blanket license because of its political overtones.
Should BMI, ASCAP, or SESAC address limitations within their agreements? Should it have a clause about whether or not the rightsholders of these songs are offended by particular uses? If you’re a major political campaign like the McCain campaign, and your choices are go and negotiate a license for a song or just use it and get sued later, maybe the best approach is just to use it and risk it. The McCain campaign’s going to have trouble clearing anything!
They should only let the candidates use songs they write and perform themselves. I’d like to hear Bob Barr’s song.
I don’t really see why there needs to be an exemption. There is no way in hell anybody would ever hear a song at a political event and assume the artist had endorsed the politician. It’s a massive leap of logic that could perhaps only a person as intellectually debased as a rock star could make.
@Lax Danja House: Really? This IS a country where many people still think Iraq was behind 9/11.
Do you really suppose the people yelling “Terrorist!” and “Kill him!” at McCain rallies understand the finer points of copyright law?
@Lucas Jensen: Dave Grohl is still dumber than all of those people.
One thing this article doesn’t mention but should be obvious is that McCain’s song selections have caused a fair amount of fallout in the form of bad press – musicians coming forward and saying they don’t approve the use. But these days political rallies really seem to rely on the energy that music generates – much like sporting events. I disagree that it wouldn’t be reasonable to think the rightsholders endorse the campaign. Most people don’t understand intellectual property licensing, and it seems intuitively correct that the campaign would have to clear rights.
One lawsuit that I’m watching is Jackson Browne’s for the use of Running on Empty for a McCain commercial. In addition to the copyright infringement, which appears to be a slam dunk since there’s no licenses as explained above, the suit also alleges that Browne’s rights under the federal Lanham Act were violated because there’s an implication that Browne endorses the candidate. So there’s a legal doctrine that arguably supports the endorsement angle above.
Another argument that campaigns are using is, when they change the lyrics to a song for an ad, it’s fair use under the transformative use doctrine because it becomes a song parody.
Meanwhile, musicians are lining up to license their music to Obama. His campaign is welcome to anything I own and control – heck, I’ll exponentially increase my contributions to his campaign if he uses my song. I’ll even transfer the rights in gross…but I digress.
@Lax Danja House: Explain.
I’m voting for the first candidate that uses “Wet Pets”
@Lax Danja House: Yeah I don’t get it. Dude’s a shrewd businessman and fantastic drummer.
Anyways I hope these Idolawyer posts become more frequent (and maybe longer).
@moulty: Thanks, Moulty – as w/ most lawyers, I have my time constraints – but I’ll encourage Idolator to keep sending me issues. It’s good fun for me.
I was being facetious. I just think he’s a douchebag.