What’s a songwriter to do when his/her song is used without authorization by a politician who espouses opposite views?
This increasingly is becoming a problem in the advent of the Internet when just about everything you ever wanted to find from a live event is posted in social media. More songwriters and publishers are made aware of political music uses now than ever before.
Such was the case when Donald Trump used “We Are the Champions”, written by Freddie Mercury and performed by Queen, in his 2016 election. Trump had used this song at a rally and Brian May of Queen had complained about it in the blogosphere. What May failed to do and should have done was tell the US performing rights society (PRO) that represents this song, BMI, about his problem with the use. If he had done that, BMI would have written to the Trump campaign and told them they cannot use the song again under any performing rights license that any venue he was going to speak at in the future might have in place, and any future violation would have resulted in a lawsuit.
You see, BMI is the only PRO with a policy about songs being used in political campaigns built into their general venue license, and Freddy Mercury, though deceased, remains a BMI writer via his estate. This policy is supportive of songwriter’s objections to uses of music in political settings. The songwriter or publisher can give written notice to BMI when he/she sees that his/her song has been used by a campaign they are not comfortable with, and BMI will put the campaign on notice that they no longer have permission under the BMI blanket license to utilize that song.
The ironic thing, which is not widely known in the songwriter/publisher community, is that BMI has had this policy in place for a long time. I say that because as my Facebook feed was flooded with articles about the “We Are the Champions” use by the Trump campaign at the RNC convention, almost no one was aware of this excellent option for songwriters and publishers that BMI provides to them.
The only reason I knew about this policy was due to the fact that in 2016, I ran into Mike O’Neill, the President of BMI, at Michaels restaurant. He was asking me what was new in our publishing company, and I was telling him I was very excited about a political ad I had just closed for a Representative in Maryland. The ad was about gun control and had a very effective use of Harry Belafonte’s “Turn Around”, a song that the company I worked for at the time represented. I was most excited that this might become a new income stream for songwriters and music publishers. That’s when Mike told me he had implemented this policy regarding music for political uses in the BMI venue license after the Dixie Chicks (now just The Chicks) had their infamous confrontation with George W. Bush. That’s when BMI decided they needed a mechanism to assist their members with music uses in politics.
The problem is the legal recourse for a songwriter or publisher is fairly limited.
What is fairly clear to most people is that the use of music in politics is a fully charged item that all songwriters, at least those I have worked with, want full written approval rights over because they do not want to be associated with political views that are different to their own. I think most politicians respect this when given notice. The problem is the legal recourse for a songwriter or publisher is fairly limited. The financial harm may not be much when a song is performed at a rally, yet the cost of mounting a case usually is quite high. In addition, the law theories that could assist with such a case, like the use of the Lanham Act, have largely been untested because most lawsuits that have been raised in this area wind up settling as politicians prefer not to litigate, go to court, or draw negative attention to their campaign or name.
ASCAP also has a policy about music in politics, but they have a different process and require a direct ASCAP license be used by political campaigns. According to their website:
“As a general, rule, the ASCAP license for convention centers, arenas and hotels excludes music use during conventions, expositions and campaign events. If a campaign is holding many events at dozens of different venues, ASCAP suggests that it might be easier for the campaign itself to obtain a public performance license from ASCAP directly, rather than relying on the general venue license. This license is issued to an individual candidate’s specific campaign and extends only until the candidate is sworn into office — not for the candidate’s full term in office. The ASCAP Political Campaign License agreement provides a blanket license to perform any or all of the millions of compositions in the ASCAP repertory. However, ASCAP members may ask ASCAP to exclude specific songs from a particular political campaign’s license. In that event, ASCAP will notify the campaign of the excluded works.”
This means it is incumbent on ASCAP writers to notify ASCAP if they do not wish a particular campaign (say for example, Donald Trump’s campaign) to use their music. If you didn’t know this policy before, now you do, it’s time to notify ASCAP of the political uses of your music you disapprove of.
In 2020, the problem is rearing its ugly head again. Neil Young objected to the Trump campaign’s use of his songs “Rockin in the Free World” and “Like a Hurricane” at the Mount Rushmore rally in July 2020. He publicly wrote to the President, “although I have repeatedly asked you to please not use my music because it indicates that I support your agenda, you have always played my songs anyway at your gatherings, with no regard for my rights, even calling me names on Twitter.” Earlier this month, he went a step further and announced that he is suing Donald Trump’s campaign for copyright infringement.
This is NOT ok with me… https://t.co/Q9j9NRPMhi
— Neil Young Archives (@NeilYoungNYA) July 4, 2020
Young is not alone – in fact there are many artists who have told Trump to stop using their music at his rallies. The Rolling Stones – whose 1969 song “You Can’t Always Get What You Want” has been the closing theme for countless Trump rallies – issued a statement in June saying that they are working with BMI to stop the President’s use of the track, threatening legal action if it continues. In the same month, the estate of Tom Petty issued a cease and desist letter to the Trump campaign over its use of his song “I Won’t Back Down” at a rally, and Brendon Urie of Panic! At the Disco tweeted, “Dear Trump Campaign, F*** you. You’re not invited. Stop playing my song.” Backed by the Artist Rights Alliance, dozens of high profile artists signed an open letter addressed to political campaigns last month, demanding that their songs get clearance before they can be played at such events.
What if, as a community, we grew the business of political advertising so that we magnified the good candidates, and also made some synchronization income from that effort?
This all got me thinking about the opposite… what if we as a songwriter/publisher community looked at political advertising as an opportunity? Millions of dollars are spent on local, state and federal elections every year, particularly in a year like 2020 when the stakes are so very high. For as many candidates that we do not agree with, there are truly thousands that are using their talents and efforts to support and uplift life in America. They also have lots of advertising dollars to spend and nothing makes as large an impact in advertising as a well-placed use of a great song. What if, as a community, we grew the business of political advertising so that we magnified the good candidates, and also made some synchronization income from that effort? Obviously, a discounted rate might be appropriate for smaller campaigns that are local or state bound, but there is no reason a well-placed ad in a significant market can’t get a decent synchronization fee for a two to three month television, radio and Internet commercial.
The battle to stop candidates we disagree with will continue to rage on, however, there are some remedies if you work with ASCAP and BMI to notify campaigns and stop them from using your music. In addition, if you really feel that strongly about a campaign not using your music, wouldn’t it make sense to license your song against their opponent. Use your talent and your creative output to get rid of the bad candidate who is using your song without permission (even after repeatedly being warned not to do so) by supporting their opponent with an awesome ad, utilizing your song, that is fully licensed. There are always multiple ways to solve a problem…let’s use our creativity to solve this one!