Is it better to beg for forgiveness than to ask and get turned down? Well…in the music context…let’s see. On July 19, 2016 at 7:37pm, the renowned 2000 Rock & Roll Hall of Fame Inductees Earth Wind & Fire tweeted: “Another unauthorized use (September) at the Republican Convention, against our wishes.” Earlier that day, at 7:18 am, the famed 2001 Rock & Roll Hall of Fame Inductees Queen similarly tweeted: “An unauthorized use at the Republican Convention against our wishes – Queen.” In a statement by Sony/ATV Music Publishing, the company indicated it “has never been asked by Mr. Trump, the Trump campaign or the Trump Organization for permission to use ‘We are the Champions’ by Queen.” The statement went on, “On behalf of the band, we are frustrated by the repeated unauthorized use of the song after a previous request to desist, which has obviously been ignored by Mr. Trump and his campaign. Queen does not want its music associated with any mainstream or political debate in any country. Nor does Queen want ‘We are the Champions’ to be used as an endorsement of Mr. Trump and the political views of the Republican Party.”

Ouch! Embarrassing right!? This is not the first time a political campaign has been back-handed by artists who disagree with being associated with a candidate by the use of their music. So why can’t campaigns seem to get it right? Most often, the response by the campaign is “we received a license to use the music.” Well, if that’s so, why the push back by the artists? The answer may turn on what, if any, “license” the campaign actually received.

Most people have heard of the performance rights organizations ASCAP, BMI and SESAC. These organizations represent millions of musical works and their songwriters and composers. As the name suggests, performance rights organizations are responsible for licensing the public performance of music on television, radio, satellite, cable, venues, the Internet and mobile. They track music use, collect royalty fees for the public performances of that music and distribute the same to the rights holders. However, copyright is a “bundle of rights.” Public performance is only one right in that bundle.

When music will be played on television, for example, a license is also required for the synchronization of the music with the video. Additionally, a separate license is required when that television spot uses the master recording (i.e. the track as recorded by the artist). Generally, the right to license use of the master recordings is held by the record label. So you see, when someone says “I got a license,” the follow up question may need to be “Did you get all required licenses!?”

Even if the licensing steps are properly followed, that is not the end of the matter. If an artist does not want to be associated with a campaign, that artist may seek injunctive relief and damages in a court of law. This is because copyright law is not the only law implicated by the campaign’s use of the artist’s music. Our nation’s federal trademark law, the Lanham Act, 15 USC §1051 et seq., covers confusion or dilution of a trademark (such as a band name or artist name) through its unauthorized use. Similarly, the Lanham Act protects against “false endorsement” defined by courts as follows:

A false endorsement claim based on the unauthorized use of a celebrity’s identity . . . alleges the misuse of a trademark . . . such as visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff’s sponsorship or approval of the product. In such a case, the “mark” at issue is the plaintiff’s identity.

Many states also have what are known as “Right of Publicity” laws which protect the image and likeness of artists.

What does all this mean? To avoid considerable embarrassment and legal headaches, campaigns should contact counsel for the artist, or the artist’s management, (and that of the songwriter if they are not one and the same) to obtain all the required permissions. Additionally, the permissions required for proper use of the song will likely include separate licenses by the publisher of the composition and the record label.

©2016 Albert F. Davis, Esq.

This law update is intended for general information purposes only. One should not consider the update legal advice or legal opinions relating to any specific facts or circumstances. An attorney-client relationship is not created by reading this update. Please feel free to contact A.F. DAVIS LAW for further information.