Rock the Vote: Copyright Implications of Politicians’ Use of Music in Campaign Ads

It’s Election Day, which means we’ll finally be spared from all those campaign ads. This is a relief for everyone, but it’s particularly so for musicians who have become increasingly more vocal in objecting to politicians’ use of their copyrighted materials in their campaigns. In the last several years, many notable artists have objected on a variety of grounds:

Objections Based on Political Ideology

Some simply don’t agree with the position taken by the politician using the work. For example, in 2008, when John Mellencamp learned John McCain was using “Our Country” and “Pink Houses” at his rallies, the musician informally requested the politician stop because the “songs. . . have a very populist pro-labor message [and are] written by a guy who would find no argument if you characterized him as left of center" which he believed was wholly inconsistent with McCain’s conservative message. McCain relented and stopped using Mellencamp’s songs, which many believe is just “good politics” so as not to alienate Mellencamp fans much less provide fodder for the overtly liberal rocker to publicly condemn the entire campaign and perceived misuse of the music.

Objections Based on Copyright Law

Others, however, base their objection on legal grounds, including copyright infringement. While section 106(4) of the Copyright Act grants copyright owners the exclusive right to perform, or to authorize others to perform, their works publicly, it does not provide the best means to object to politicians’ use of music. This is because the public use of songs is generally licensed by music clearinghouses known as performing rights organizations (“PROs”). These PROs freely grant licenses to venues and it is likely that most public performances of these songs in campaigns are probably authorized by the PROs without any input from the artists themselves.

However, outside of public performances of the music, it is the copyright owner himself who typically licenses use of the music in advertisements, whether broadcast or online. If the campaign uses music in its political advertisements without authorization, it may be subject to an infringement action. This includes use of the music even when lyrics are rewritten and/or re-recorded, as was the case when California Senate candidate Chuck DeVore was found to have unlawfully adapted two Don Henley songs to lampoon President Obama and Nancy Pelosi. The judge in that case ruled that it was not a fair use because DeVore's “Hope of November” was deemed an infringing satire of Henley’s “The Boys of Summer” because the altered version didn’t "comment on or criticize the content of 'Boys of Summer.' Rather, 'November' uses those themes and devices to mock a separate subject entirely, namely Obama and his supporters” and thus was not deemed a fair use as many parodies are.

Politicians Rock the Vote. . . At Their Own Risk

Even if copyrighted songs are legally obtained and used, it may ultimately just be plain old “bad politics” to do so.