Public Performance Rights (and Wrongs), The Use Of Pop Music In Political Campaigns

• Published date: 11 September 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Advertising, Marketing & Branding, Music and the Arts
• Law Firm: Marks & Clerk
• Author: Ms Claire Chalmers

Music has a unique ability to inspire and motivate, so it is unsurprising that politicians regularly seek to increase their cultural capital by using popular music during their election campaigns. On occasion, artists object and express concerns that use of their work could be construed as their endorsement of a particular candidate and their policies.

The use of music during political campaigns has become such a heated topic in the US that in July 2020 over 50 artists (including Rihanna, Adele, and The Rolling Stones) signed an open letter calling for US campaign organisations to "establish clear policies requiring campaigns to seek consent" from artists.

So how is it that politicians can use music during their campaigns, seemingly without artists' consent?

Generally, public performance rights (PPR, the right to play or perform music in public) are licensed under a blanket licence granted by a collective management organisation (CMO) within the relevant jurisdiction. Rights holders will join a CMO as members and instruct it to license PPR on their behalf. In return, they receive royalties. Not all CMOs work on the same basis, and there are different types of licences depending on usage.

How PPR are licensed in the US

If a venue has a public performance licence from a CMO, such as the American Society of Composers, Authors, and Publishers (ASCAP) or Broadcast Music, Inc. (BMI), the venue can play recorded music at its events. However, licences for venues where political rallies are likely to be held, such as convention centres and hotels, generally exclude the right to play music at events organised by a third party. To cover this use, ASCAP and BMI offer licences specifically for political campaigns, which let campaigns use recorded music wherever they go. The licence is granted to an individual candidate's specific campaign and extends only until they are sworn into office.

The fact that many artists and record labels are represented by CMOs, and use of their music is covered by the licences granted by these CMOs, means that it is difficult for the artists to take legal action to stop their music being used by political campaigns.

However, this could be about to change. In June 2020, The Rolling Stones threatened legal action against Donald Trump if he continued to use their song "You Can't Always Get What You Want" as the closing theme for his rallies. The band had sent numerous cease & desist directives to Donald Trump without success, so they took...