Moral Rights and the Use of Popular Music in Political Campaigns
By: Ashley Cook
Moral rights in the context of music are the legislation that protects the right of attribution, right of anonymity, and the right of integrity for artists and musicians internationally. However, in the United States, Congress has not yet adopted the use of such rights despite their prominence worldwide, most notably in France and Germany. 1 Even while moral rights are recognized by the Berne Convention, an international copyright agreement that dictates a universal, worldwide copyright code for literary and artist works—an agreement that the U.S. signed onto in 1988—they were never solidified into U.S. legislation. 2 The lack of such statutes, more precisely translated as “personality rights,” has caused much turmoil with public performance licenses and the use of popular music in recent, large political campaigns. This confliction accentuates the pressing need for adaptation to our legislation in order to protect more than just the economic rights of American musicians and artists.
In practice, artist rights associated with personality and image in the U.S. music industry have never been heavily protected. Most contracts, namely publishing ones, require artists to automatically consent to the use of their music for scenarios the publisher often exclusively controls. This means that the publisher does not have to obtain prior, individual approval from artists or songwriters for use of their music in association with things that might be morally conflicting for the writers; it is all signed over with the publishing contact. However, creative control clauses can still be written in contractually, and songwriters with enough clout can gain control to govern what use and placement warrants prior artist approval. For example, artists may request that the publisher gets consent before making substantial changes to their music, changing the English lyrics, adding foreign lyrics, making changes to the title, granting synch licenses, and using the song in commercial and print advertisements. 3 Although not all of these permissions may be possible to obtain, especially for smaller artists, the more creative controls in a contract, the more sovereignty an artist has over their name, likeness, and association. These aspects are essential to artists, especially considering commercial music success is highly individualized, and fans often need to agree morally with an artist’s views and ethics in order to support their music.
For high profile artists, creative controls are especially important because so much of celebrity personal beliefs are broadcast to the public eye. Recently, lack of these controls, or rather lack of moral rights, led to what several artists are claiming as false association with President Trump’s political campaigns. In November, Rihanna’s attorneys sent a cease-and-desist letter to the Trump campaign after hit song “Don’t Stop the Music,” was repeatedly played at Trump rallies while free Trump T-shirts were being distributed. Rihanna’s team claimed that such an act falsely implied that the singer endorsed President Trump and his political motivations. 4 Furthermore, Rihanna is not the first artist to demand such a termination; artists Neil Young, Pharrell Williams, Steven Tyler, and the Prince estate have also taken action to prevent the public performance of their music during Trump political rallies. While it may seem obvious why artists should have a say in such associations, legally, musicians have less control than one would think, especially in connection with public performance.
For example, the right to publicly perform a copyrighted composition is one of the six exclusive rights transferred to a publisher when a songwriter signs a publishing deal. Publishers then grant blanket licenses to performing rights organizations such as ASCAP and BMI for use of their catalog in public spaces, granted the licensees (i.e. venues, restaurants, stores, etc.) pay royalty fees. This is ideal for consumers and licensees because instead of seeking out individual licenses for every song publicly broadcasted, they can instead pay a flat fee to a PRO, who will in turn collect the royalties and distribute them accordingly to their affiliated songwriters. Because of blanket licenses, most large venues where political campaigns take place technically have the music pre-cleared, and thus are not infringing upon the rights of an artist who have contractually transferred their public performance rights.
However, political campaigns can still infringe upon non-copyright associated claims. These include the right of publicity, which in many states protects the image of a famous person or artist, the Lanham Act, which protects the misperception or dilution of a trademark such as a band or artist name, and lastly, false endorsement, which protects an artist’s identity from being wrongly associated with an outside influence. 5 To avoid this, campaigns can obtain traveling licenses for music in case a venue does not provide the proper authorization, or a rally does not take place at a location with public performance licenses. By seeking prior approval from artists directly, campaigns can avoid false confliction and copyright infringement as well as prevent public scrutiny from artists for using music without consent.
Despite preemptive actions that can be taken by campaigns to clear music, American artists are still not fully protected from misleading public performance associations. For example, as long as a venue hosting a campaign has a cleared license, an artist from that catalog can be played while both the venue and electioneer are complying with copyright law. This stresses the importance of moral rights adoption in U.S. as artists elsewhere in the world are given the option to be associated or not associated with even mere levels of political agendas. Furthermore, this also stresses the need of neighboring rights in the U.S., as when such songs are broadcasted publicly for campaigns, only the composition rights holders are getting paid, not the sound recording copyright holders. This leads to even less control for artists who do not write their own music, as they will not be paid a royalty for the playback of their sound recording in accordance with U.S. copyright code.
There is slightly more regulation for music used in television campaign advertisements, as there are no blanket licenses for synch licensing, and both a synch license and master use license must be obtained when placing a song in a television advertisement. Synch licenses are negotiated on a song-by-song basis in terms of price, use, and exclusivity, and are not to be confused with public performance licenses. For example, in 2008, John McCain infringed upon Jackson Browne’s exclusive rights by using his song “Running on Empty” in a politically motivated television and online advertisement. McCain’s campaign did not obtain the proper clearance, and Browne’s attorneys filed suit and won, settling with an undisclosed amount of money for the infringement. 6 While it can be easier to recognize and veto synch and master use licenses because they are done on a case-by-case basis, American artists and their image are still not fully protected. For instance, if McCain had obtained a synch and master use license from the publisher and record label, and Browne had no creative controls in place, McCain would have been in full accordance with the U.S. copyright code, underlining why moral rights for American musicians are in dire need of recognition. Other examples of artist-campaign associations without direct consent include Barrack Obama’s use of “Hold On, I’m Comin” by R&B group Sam and Dave, President Trump’s use of “Rockin’ in the Free World” by Neil Young, and Ronald Reagan’s 1984 use of “Born in the USA” by Bruce Springsteen. It is important that larger artists like these use their influence to bring moral rights to light as they have the power and clout to veto such use, while smaller artists are not granted the same rights and controls contractually.
In conclusion, moral rights in the United States are long overdue for musicians. In an industry where success is so personalized and influenced by moral association, artists should be granted the rights of attribution, anonymity, and integrity. Association or disassociation should not be solely in the hands of the licensee or publisher, but up to the artists themselves to protect their music and personality rights preemptively.
Endnotes
1 Bailey, Jonathan. “Moral Rights for Musicians: A Primer.” Full Summary of the Digital Millennium Copyright Act | Future of Music Coalition, Future of Music Coalition, 10 May 2016, futureofmusic.org/blog/2016/05/10/moral-rights-musicians-primer.
2 Techopedia Staff. “What Is the Berne Convention? – Definition from Techopedia.” Techopedia.com, Techopedia, www.techopedia.com/definition/26404/berne-convention-for-the-protection-of- literary-and-artistic-works-berne-convention.
3 “Chapter 18 – Songwriter Deals.” ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS: Ninth Edition, by DONALD S. PASSMAN, VIKING, 2017, pp. 322–323.
4 Kreps, Daniel. “Rihanna Sends Cease-and-Desist After Songs Played at Trump Rally.” Rolling Stone, Rolling Stone, 6 Nov. 2018, www.rollingstone.com/music/music-news/rihanna-sends-cease-and-desist-after-songs-played-at-trump-rally-752314/.
5 ASCAP. “Using Music in Political Campaigns: What You Should Know.” ASCAP.com, ASCAP, www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf.
6 Keene, Peggy. “The Use of Popular Music in Political Campaigns.” Klemchuk LLP, Klemchuk LLP, 26 Aug. 2016, www.klemchuk.com/use-popular-music-campaigns/.
