Continuing Conversations on Performance Rights: Political Campaign Music

Continuing Conversations on Performance Rights: Political Campaign Music

Another election cycle, another frustrated musician working to distance themselves from an implied association with Donald Trump.

On Tuesday, August 4th, 2020, Neil Young filed a lawsuit against President Trump’s campaign for the unauthorized use of Young’s songs “Rockin’ in the Free World” and “Devil’s Sidewalk” at rallies and other political events dating back to 2015, alleging copyright infringement based on the public performance of Young’s copyrighted compositions. The filing comes days after the Artists Rights Alliance published an open letter signed by artists such as Sia, Regina Spektor, R.E.M., Blondie, Lorde, Elton John, and Elvis Costello, as well as The Rolling Stones’ Mick Jagger and Keith Richards and Aerosmith’s Steven Tyler and Joe Perry (among others), calling for clearer licensing guidelines that require political campaigns to seek the explicit permission of  “featured recording artists, songwriters, and copyright owners” for the use of their music.

It’s widely acknowledged that music licensing is a complex process involving multiple rights holders on both sides, various types of uses and a multitude of circumstances that could require anything from the submission of a reporting form to complex negotiations between multiple parties. Regardless, the fact that issues continue to arise between artists and politicians over performance rights suggests that more work needs to be done to clarify exactly who owes what responsibility and to whom.

In simplest terms (and when there is no visual component involved), campaign managers wishing to stay onside with music licensing requirements will need to secure public performance licenses for the use of music at their campaign event. Sounds simple enough, but things become complicated once we consider the way in which these licenses are administered.  Those wishing to use music at their event are left to discover if potentially complex negotiations might be required for use of the sound recording and composition, versus an online application for a license and the simple payment of royalties for the use.

For large events, public performance rights are typically administered through blanket licensing procedures by performance rights organizations (PROs) that exist in various jurisdictions. SOCAN (for compositions) and Re:Sound (for sound recordings) administer these rights in Canada; in the United States, BMI, ASCAP  & SoundExchange are major rights-administration organizations. When a copyright owner adds their music to the repertoires managed by the PROs, they contract with the organization to manage their public performance rights on their behalf, and to collect the associated royalties.

When a copyright user wishes to play music in public, they must contract with the PRO (who is acting on the rights-holder’s behalf) in order to secure the appropriate public performance license. Industry standard is that public performance rights for venues such as bars, restaurants and stadiums are secured by the venue and issued through flat-rate, blanket licensing procedures, with royalties in Canada determined by government tariffs & those in the US set by the Copyright Royalty Board. For these types of circumstances, there is typically no song-by-song negotiation process happening between the music user and the PRO. Generally, a blanket license grants a music user the permission to publicly play any song in the PRO’s repertory. In the case of ASCAP for example, this includes over 11 million musical works and for BMI, over 15 million. This model makes sense when we consider the usefulness of blanket licensing for music that is played to large audiences in bars, restaurants, shopping malls or streamed through Spotify or Apple Music, for example. The intent of the collective licensing and rights management services offered by the PROs is to create a simplified process for music users, with the end goal being more royalties for copyright owners.

While industry standard is that, typically, public performance licenses are secured by the venue in which the event is taking place, this is not the case in every circumstance. The use of music in political campaigns is one such circumstance. According to ASCAP’s policy on public performance rights as they relate to political campaigns, “as a general rule the ASCAP licenses for convention centers, arenas and hotels exclude music use during conventions, expositions and campaign events”. The policy directs campaign managers to secure instead an ASCAP Political Campaign License. As it turns out, this Political Campaign License is basically just another blanket license.

According to ASCAP, “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.”

What ASCAP fails to describe is the process by which a rights-holder becomes aware of the use of their musical works by a particular campaign. If ASCAP’s Political Campaign License provides a licensee the right “to perform any or all of the millions of compositions in the ASCAP repertory”, it seems unlikely that further permissions related to the particulars of the use are being sought in advance. It’s more likely that a rights-holder would choose to exclude a song from a particular campaign’s license after being alerted to the use. Considering the whole point of collective licensing is to avoid song-by-song negotiations and to streamline complex licensing procedures for copyright users, it is doubtful that a blanket Political Campaign License is the best vehicle to anticipate rights holders’ desire to know of and approve campaign uses on an individual basis, even if it grants a copyright owner the ability to revoke permission after the fact.

As reported by Pitchfork, BMI maintains a similar policy. According to a spokesperson, BMI offers a “political entities license” authorizing the use of more than 15 million songs in their repertory, while also providing rights-holders the option to exclude certain songs after the fact. Indeed, as Pitchfork reports, this is the license held by the Trump campaign.

Bearing in mind the amount of recent attention paid to the unwelcome use of music by various political campaigns, organizations such as the Artist Rights Alliance invite us to consider the reasons why the major PROs continue to offer blanket licensing for political campaigns, as opposed to requiring campaign managers to work directly with the rights-holder for this type of use. This is suggested in ASCAP’s policy, but it does not appear to be any kind of mandatory process. Acquiring direct approval from the copyright owner is industry standard in other areas of music licensing, occurring with synchronization licenses, for example. In the opinion of the Artist Rights Alliance, seeking explicit consent for this particular type of use “is the only way to effectively protect…candidates from legal risk, unnecessary public controversy, and the moral quagmire that comes from falsely claiming or implying an artist’s support or distorting an artists’ expression in such a high stakes public way.”

Part of the problem may be that public performance rights haven’t historically been given the respect that parties such as the Artist Rights Alliance are now demanding in their open letter, particularly on the sound recording side. In the United States, for example, sound recording owners and performers famously lack performance rights to music played on terrestrial radio. Historically, public performances were oft considered a form of free publicity and seeking prior consent from rights-holders was an unknown concept. The situation artists find themselves in when it comes to seeing their music used in political campaigns may be just another symptom of an aging copyright and music licensing model that is struggling to keep pace with changing times.

In this regard, what the current regime appears to offer rights-holders is a remedy as opposed to any real kind of protection, or opportunity for consent.  As it currently stands, it appears the key to making a successful copyright infringement argument in the context of music used during a Political Campaign event is to show that the defendant campaign is aware of the rights-holder’s lack of consent to the use of their musical work, but continues to do so anyway. This point may be what the Neil Young filing hinges on.

Young’s lawsuit is an interesting development as public statements and cease-and-desist letters have been the typical artist response to the unwelcome use of their music by politicians. Depending on how far the case goes, it may provide an avenue to explore copyright arguments that, in this particular context, have yet to be tested.

Written by Meghan Carlin. Meghan is in her second year of studies at Osgoode Hall Law School. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association.