The Volokh Conspiracy - May Singers and Composers Stop Campaigns from Using Their Songs?

John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson.

1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances.

2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law).

3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.

4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one.

5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it.

6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.

	[Eugene Volokh, February 15, 2008 at 2:28pm] Trackbacks May Singers and Composers Stop Campaigns from Using Their Songs? John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson. 1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances. 2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law). 3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor. 4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one. 5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it. 6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.