Even Politicians Can Commit Copyright Infringement

It’s campaign season, and you know what that means: politicians walking onto stages while catchy-but-inoffensive rock music plays in the background.

Campaign theme songs have become as American as apple pie. However, many politicians have found themselves in hot water with the people who own the copyrights on these songs, and end up receiving cease-and-desist letters from the artists. By pure coincidence, I’m sure, this tends to happen when the artist has serious disagreements with the political beliefs of the candidate using their song.

We’ve seen minor spats like this between Heart and Sarah Palin, as well as The Foo Fighters and John McCain, among many others. In both of those cases, the Republican candidates’ use of the songs was rebuked by the artists mainly because of divergent political views (though some of the statements by the artists do come off as a bit self-important).

Most recently, the progressive rock band Rush has taken issue with the use of some of their songs by Kentucky Senate candidate and darling of the Tea Party movement Rand Paul (also reported here). This time, however, the members of Rush have taken pains to insist that this is not a political issue, and it’s simply about respecting intellectual property rights.

Now, regardless of these artists’ reasons for being opposed to politicians’ use of their music, whether or not they have a legal basis to stop them is another issue.

Under copyright law, the owners of a copyright on a work (in the case of a song, there are at least 3 separate copyrighted works involved: the musical composition, the lyrics, and the sound recording) have several exclusive rights associated with that work. Most obviously is the exclusive right to reproduce, which is the basis by which copyright owners can prevent people from making unauthorized copies of their work, which is what most people think of when they think of copyright infringement.

However, another exclusive right, which isn’t discussed as often, is relevant here: the right to publicly perform the copyrighted work. Copyright owners, in addition to being able to prevent others from reproducing their works, can prevent others from performing their works in public.

There is no question that playing these songs constitutes a public performance. However, there are some issues with the copyright owners trying to stop this, especially if it’s for political, rather than economic, reasons (copyright law protects economic interests, after all, and not the copyright owner’s political sensibilities). First of all, in the U.S., we have this thing called the First Amendment. You may have heard of it. It exists to protect some of the rights that Americans hold most dear, free speech being among them.

Over the last 200 years or so, the Supreme Court has had to work out just what type of speech the First Amendment protects, and what it doesn’t. While this area of jurisprudence is a bit muddled, to say the lease, one thing is clear: political speech receives just about the strongest protection possible. Courts will not enjoin (or in any way punish) political speech unless there is a very, very good reason. And, unfortunately for the artists, as long as the necessary royalties are paid to the copyright owner (usually the record company, not the artist), there’s very little they can do to stop this.

Generally, mainstream artists are represented by large record labels, who participate in a complex licensing scheme that, when you boil it down, allows anyone to use a song for a given purpose as long as they pay a license fee that is uniform across the industry.

This may be a sad state of affairs for the artists, but it’s the system we live under. The artists involved here signed up with the major record labels, and that has served them very well, financially. In exchange, they gave up some legal control over what is done with their music. Even if this weren’t the case, if they licensed their music to someone for public performance, they probably couldn’t do much to go back on the deal if they didn’t like the political context in which the music was used.

Unfortunately, the only way around this would be to record and distribute their music completely independently. This has been done, but it’s not easy. In such a case, the artists would presumably own all of the copyrights associated with their music. In that case, they could refuse to license their music for use in political campaigns for politicians they didn’t like (or, indeed, they could grant or refuse licenses for any reason).

And even if they did own all the copyrights on their music, the campaigns might have an argument that their use of these songs in this manner constitutes fair use. Because this use doesn’t really change the market value of the songs (nobody is going to listen to a song in the background at a campaign event instead of buying it – whether they were going to buy it or not, this would not change their decision).

Furthermore, the fact that the use of this music is for the purpose of advancing a political view, or for the purpose of “commentary or criticism” bolsters the fair use argument.

This is moot, however, considering that most mainstream music artists don’t have this type of control over their music.

This may change someday, especially with the rise in digital distribution and other technologies (making the recording and distribution of music without the aid of a record company much easier). Until then, however, musicians (and the rest of us) may just have to endure the image of a stodgy old Republican shambling onto a stage with Ricky Martin playing in the background.

By: Rusty Shackleford