Can Music Artists Stop Politicians From Using Their Songs at Campaign Rallies?

Joe: 106.7 WIZN, it’s Ram Jam with “Black Betty.” Heard Rush and “Fly by Night” before that. I’m Joe Vega here with you on your Wednesday Rocking Ride Home. And I’m joined now by Ben Barry from Martin Harding & Mazzotti. Hello, Ben.

Ben: Hello, Joe.

Joe: Calling you today, Ben, in regards to, and this is something that happens every election year, politicians at a rally, they’re playing a popular song, that musician doesn’t like that politician. In this case, I was thinking about Bruce Springsteen’s “Born in the U.S.A.,” doesn’t want President Trump playing it at his rallies. And I guess my question is, is there anything legally speaking that they can actually do about that?

Ben: There is. The success of the enforcement has been limited. Anytime an artist creates an original work, they get copyright rights and those can be enforced against other people for unauthorized use of their music. For example, Steven Tyler recently had a copyright infringement action against Trump and they used actually both copyright law but also a specific act, the Lanham Act. And it was actually successful to the extent that it wasn’t litigated but the Trump campaign stopped using that particular song. And so I think that generally when artists express their desire not to have their music used in a particular way, the offending party generally stops using it. I think that there is good case law that would suggest that the artists would prevail if it was an unauthorized use. I think you get into the weeds a little bit when you get into licenses because those are where the artist is giving up some of that copyright to a licensing agreement and then the licensing agreement or the purveyors of those will sell the license to somebody else who can use it for whatever they want. So that’s kind of become tricky, there’s a crossroad there between copyright and licensing agreements that could provide some fertile grounds for deep litigation. But for the most part, a cease and desist letter will be enough. Rihanna sent a cease and desist letter to the Trump campaign and they stopped using some of her music. Usually, that’s enough to get the campaign to change course and stop using stuff. Certainly “Born in the U.S.A.,” iconic Bruce Springsteen song is something that most politicians would want to use. It’s very patriotic.

Joe: We’re going to get to that point here one second. My question is why have they not listened to the lyrics of “Born in the U.S.A.,” it’s not a pro-America song, it’s a protest song.

Ben: Right. And I defer to your musical analysis. What I would say though is that there is something deeply American, A, about, Bruce Springsteen and…

Joe: Of course there is.

Ben: …B, about the opening chords of “Born in the U.S.A.” that evoke I think notions of national unity and…

Joe: Nationalism, sure, sure, yeah, absolutely. I mean, look, you can make an argument, I guess that it’s a celebration of the little guy, but ultimately though, if you ever read the lyrics to “Born in the U.S.A,” if you want to look it up sometime, you’ll see what I’m talking about. All right, Ben, thanks for coming on the program. Ben Barry from Martin, Harding & Mazzotti.

Ben: Thank you, Joe.

Joe: You of course can call Ben anytime at 1800law1010 or go online to 1800law1010.com. Stay tuned, Styx and Ratt coming up next.