Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Are Politicians Allowed to Use Songs Without Permission?

Author: Scarinci Hollenbeck, LLC

Date: July 7, 2015

Key Contacts

Back

Every four years or so, a few musicians cause a stir when their music is played at political rallies as politicians often use songs without permission.

Often times, any legal threats dissipate before they make it to court, but if a judge were to rule on such a case, there’s a chance the politician could be the favorite to prevail.

As election season kicks off again, another musician has protested the use of one of his songs at a campaign rally. Businessman, Donald Trump, recently announced his own candidacy for president of the United States, and during the event, he blared Neil Young’s “Rockin’ in the Free World.” Young did not approve. There has been speculation over whether the musician will take legal action against Trump for the use of his song, but this discussion isn’t a new one.

Other incidents

In 2008, Jackson Browne, Jon Bon Jovi, Heart, Foo Fighters, Van Halen and John Mellencamp were among the artists who complained about the use of their songs at McCain-Palin events, The Hollywood Reporter explained. Rapper K’Naan wasn’t happy with Mitt Romney using one of his songs in 2012 – the same year that Michele Bachmann received a letter from Tom Petty over his “American Girl.”

As fiercely as these crops of musicians pop up each election cycle to protest the use of their songs, they often disappear. Politicians offer to stop using the songs, settlements are reached and, as a result, there isn’t much legal precedent for whether a musician would actually win a lawsuit over the use of his or her song at a campaign. When it comes to commercials, politicians do have to get permission from artists, according to ASCAP guidelines. However, the use of songs at campaign rallies is less clear.

Chuck DeVore suit

One case between a candidate and a musician did end with a judge’s opinion, and though it differs slightly from instances of politicians using music at rallies, the opinion does offer some insight into how a lawsuit would progress – and it may not end well for the musician.

In 2010, Don Henley won a lawsuit against California senatorial candidate, Chuck DeVore, and campaign manager, Justin Hart, over their use of two of his songs. To be clear, there are significant differences between Henley’s suit and the one Young would file against Trump, if he decided to of course. DeVore took two of the former Eagles members’ songs and rewrote the lyrics in a satirical manner to reflect his campaign messages. This, of course, wasn’t a fair use of copyright, and Henley won the case. However, the judge was a bit more dismissive of the musician’s arguments regarding the Lanham Act.

The act prohibits “false designations of origin, false representations and false representations in the advertising and sale of goods and services,” according to the summary judgment for Don Henley et. al v. Chuck DeVore et al. False endorsement has been recognized under the Lanham Act for unpermitted copying of “distinctive attributes where those attributes amount to an unregistered commercial trademark.”

Other factors to consider

In this case, the defendants argued that the songs used did not contain any of the “distinctive attributes” that would constitute a trademark, such as “a word, symbol or device” used to identify or distinguish them. Additionally, the court found that DeVore and Hart were not attempting to pass the songs off as actually performed by Henley. If they had been attempting to convince people that Henley had sung the song, then their commercials would have violated the Lanham Act.

Still, politicians who wish to use certain songs in their campaigns should be smart about how they do it. For example, checking to see if the venue has a blanket license to use songs is a wise move, NPR explained. While most larger locations do have such licenses, smaller venues may not, making it illegal to play some songs at them. Also, musicians might claim that their brand is being hurt by politicians’ use of their songs. While this argument is tenuous, NPR noted, it is best to avoid such situations. For advice on whether to use a song during a campaign, or whether a song has been used illegally, it would be helpful to consult an attorney with experience in these areas.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together post image

Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together

New Jersey businesses must manage legal and reputational risk together because modern disputes play out on two fronts at once: the legal proceeding itself and the court of public opinion, where customers, employees, investors, and business partners often reach conclusions long before a judge or jury has had the opportunity to evaluate the facts. Success […]

Author: Sean M. Pena

Link to post with title - "Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together"
Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York post image

Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York

No. An eviction does not automatically end a tenant’s obligation to pay rent. Post-eviction rent claims are common because recovering possession resolves who has the right to occupy the premises, but it does not extinguish the tenant’s contractual obligations under the lease. Whether unpaid or future rent remains owed depends on three factors: the lease’s […]

Author: Donald M. Pepe

Link to post with title - "Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York"
Company Dissolved? Legal and Financial Consequences to Expect post image

Company Dissolved? Legal and Financial Consequences to Expect

A company is dissolved; legally, it ceases to exist. Accordingly, dissolution results in significant legal and financial consequences.  It is a process that must be properly managed to avoid continuing liability. The Corporate Dissolution Process Corporate dissolution is the legal process of formally closing a corporation, paying its debts and distributing the remaining assets. Most […]

Author: Jay McDaniel

Link to post with title - "Company Dissolved? Legal and Financial Consequences to Expect"
The Legal Implications of Signing a Triple Net Lease post image

The Legal Implications of Signing a Triple Net Lease

A triple net lease is a commercial lease in which the tenant pays the property’s real estate taxes, insurance, and maintenance costs, known as the three nets, in addition to base rent. They are most often used in freestanding retail and office buildings and in large single-tenant industrial properties, with terms that typically run 10 […]

Author: Donald M. Pepe

Link to post with title - "The Legal Implications of Signing a Triple Net Lease"
When to Settle and When to Fight: A Litigator's Framework post image

When to Settle and When to Fight: A Litigator's Framework

Every lawsuit comes with a cost, and knowing when to settle a lawsuit is one of the most consequential decisions a business owner will face. Experienced litigators understand how to minimize cost and obtain certainty for their clients. For many business owners, the decision is viewed almost entirely through a financial lens: What will it cost […]

Author: Sean M. Pena

Link to post with title - "When to Settle and When to Fight: A Litigator's Framework"
Types of Business Law Services Companies Actually Use post image

Types of Business Law Services Companies Actually Use

Business law services are legal services that help companies form, operate, transact, protect assets, manage risk, and resolve disputes. The phrase can sound broad because it is broad. A company may need help with entity formation one month, contract review the next, a commercial lease after that, and a business dispute later in the year. […]

Author: Scarinci Hollenbeck, LLC

Link to post with title - "Types of Business Law Services Companies Actually Use"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!