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Musicians and politicians have frequently clashed over whose music gets played at political rallies. A Northeastern law expert explains how music gets played at these events –– and what musicians do to push back.
The Republican National Convention is in full swing, with the party’s nominee for president, former President Donald Trump, and vice president, J.D. Vance, taking the stage alongside other major players in Republican Party politics.
However, even with wall-to-wall news coverage of the event, one thing often gets lost when it comes to these kinds of high-profile political events: Whose music is blaring from the loudspeakers?
It turns out that what music gets played at a political rally or campaign event involves more consideration –– and legal know-how –– than you might think. It’s an area where the law, performing arts and politics intersect in sometimes uncomfortable ways, particularly for a politician like Trump, who has an entire Wikipedia page dedicated to listing musicians who oppose his use of their music.
So, what rights do politicians have when it comes to playing music during rallies, conventions or campaign events? The answer, says Alexandra Roberts, a professor of law and media at Northeastern University, is a little complicated.
A politician can’t just play any song they want because they are at a public venue. Just like any other kind of event, the organizers of political campaigns need to secure a license to get the right to publicly perform a song.
“They do need to pay for it; they do need to get those permissions,” Roberts says. “Usually, the event organizers secure a license from the rights holders, and they have to make sure the license covers the songs that they want and that it doesn’t exclude political use.”
Public venues like stadiums or arenas typically have already secured their own public performance licenses from performing rights organizations like the American Society of Composers, Authors and Publishers. Those licenses include access to hundreds of thousands of songs and typically apply to any event organizer that uses that venue, whether it’s for a sporting event or performance.
However, those licenses generally exclude political events, so campaigns would need to get their own license from an organization like ASCAP or go directly to the record label or whoever owns the copyrights to get the rights to a particular song, Roberts says.
Since so much of this process is mediated by record labels and organizations like ASCAP, Roberts notes, it rarely involves the musical artists themselves, which is where things become hotly contested.
A musician might feel ownership over a song –– even if their record label owns the rights to the sound recording –– at the same time that a venue or event organizer has jumped through all the hoops to get the permissions and license they need to play that song.
“You can be a world-famous musician and performing artist and you can stand there and say, ‘Well, I never gave my permission for Donald Trump to play my song at his political rallies,’” Roberts says. “If you’re not the copyright owner, then that’s not particularly meaningful.”
Instead, artists have found other ways to contest the use of their music in political campaigns that they might not necessarily support. In the case of Aerosmith’s Steven Tyler, that meant filing a cease-and-desist order.
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Another avenue artists have tried is claiming false endorsement under the Lanham Act, the federal trademark statute in the U.S., says Roberts.
“The idea is that the political use of a song is going to create the impression among consumers that the artist actually endorses that politician, is on board with that use, is a fan of that message,” Roberts says. “If a politician is really tying a song to their image or to their message, like they use it as their walk-on music all the time … then I think false endorsement claims might be possible. False endorsement relies, in part, on consumer perception.”
In other cases, musicians have tried to argue using the right of publicity, state law that prohibits the commercial use of somebody’s name, image or likeness without permission. Roberts says there’s a little more gray area here because this argument raises the question of whether political use qualifies as commercial use under U.S. law.
Given all of the legal complications that can come with just choosing a song to play at a political rally, it’s understandable why the RNC opted to use a cover band on stage. Roberts says it’s “an interesting way to skirt some of those requirements.”
“If the band plays covers, then they can avoid using sound recordings and thus would not need licenses for performing sound recordings, but they would still need a PRO [performing rights organization] license for the venue,” Roberts says. “Playing covers helps avoid the PR problem … because I would expect musicians will be less angry [or] offended to find out that a song they recorded was played by someone else, rather than that the recording of their song was used, featuring their voice, at a rally for a politician with whom they disagree.”
However, Roberts points out that sometimes these issues of copyright and trademark around music at political rallies are settled in ways that don’t involve the law at all. Even if a politician like Trump does everything they can to get the right license, “sometimes musicians are going to take these actions and make these proclamations not because there’s a lawsuit that they can win but because they want to make a statement.”
Oftentimes, a political statement can be more powerful than any letter of the law when it comes to settling these matters. When Trump tried to use Bruce Springsteen’s “Born in the USA” for campaign rallies in 2016, instead of going to court, Springsteen endorsed and campaigned for Trump’s opponent, Hillary Clinton. The end result: Trump supporters started booing the song at rallies.
“You don’t always need a winnable case,” Roberts says. “You don’t always need to show copyright infringement or false endorsement. Sometimes the threat of it can accomplish what you want.”