Music at a Political Rally Versus Music in a Political Ad

The use of music in political campaigns is a particularly thorny issue. In a recent skirmish, Don Henley of the Eagles sued California politician, Chuck DeVore after DeVore used versions of Henley hits, “The Boys of Summer" and “All She Wants to Do is Dance”, in ads for DeVore’s unsuccessful U.S. Senate campaign. DeVore paid an undisclosed sum after a California federal judge ruled that DeVore’s actions were copyright infringement.

As I discussed in my blog posting, Politicians Need Lesson on Proper Licensing and Rights Clearance Procedures, this is not the first time a politician’s music selection has gone awry. One factor I want to highlight is the distinction between using music at a political rally and using music in a political ad.

Use of Music at a Political Rally

A public performance license should legally cover the use of music at a political rally. You can normally obtain public performance licenses very easily through one of the performing rights organizations.

For example, in the case of the McCain-Palin presidential campaign, the McCain campaign claimed to have paid for and obtained all necessary licenses when it used Heart’s 1977 hit “Barracuda,” after Sarah Palin’s speeches. My bet is the McCain campaign did have public performance licenses just as the Obama campaign likely had proper public performance licenses when it played “Soul Man” at its rallies.

PROs issue public performance licenses as blanket licenses covering all the songs in their respective catalogs. The songwriters have little or no direct involvement in the issuance of the license and may be shocked to see their music performed to support a political agenda with which they don’t agree.

If there’s a proper public performance license, the songwriters are left with very few strong legal objections. Their cease and desist letters may complain of misappropriation or tarnishment. However, United States law generally offers no “moral rights’ or “rights against tarnishment” for music. Nevertheless, if a musician makes enough noise in the media, the politician may stop using the music because the hubbub distracts from the politician’s major message.

Use of Music in a Political Ad

Using a song in a political ad is a different kettle of fish. Use of music in an ad requires a synchronization license that you generally must obtain directly from the songwriter or music publishing company. If you’re also using an original recording, you will also need a master use license. Musicians tend to exercise much more direct control over the granting of synch and master use licenses versus the granting of public performance licenses. Also, synch and master use licenses are generally much more expensive than public performance licenses.

Using music in political ads without proper licenses can lead to significant copyright infringement liability.