Let’s just try to make it “as simple as possible, but not simpler,” as Einstein is sometimes credited with saying. The matter of copyright infringement and political campaigns is a little bit complicated, but you sure wouldn’t know it from reading social media! Folks are plenty confident they have this figured out. “Good for Celine Dion! Clobber that orange clown!”; or “I’ll never listen to the Foos again. Wrong side of history!”; or my fave, “The record industry is obviously corrupt and colluding with the rest of the Hollywood elites to take Trump down!”
With a little added attention to dispelling some of the wrongest answers I’ve read on Twitter this week, here is the deal, more or less. “More or less” in part because I’m not a lawyer but a musicologist, which means I’m a music expert with a lot of familiarity around how musical matters pertain to copyright law. Obviously, nothing you read from a nonlawyer can be taken as legal advice, right? Cool. Moving on.
Who do you think is wronger on Twitter? Is it, “Hey dummy, don’t use music without asking!” OR “Hey dummies, you can’t sue; he already got permission from the record company!” If you guessed, “It’s the law, so everything depends,” your instincts are in fine working order.
Let’s start with the fact that the records you know and love have two copyrights and they’re usually owned by two different parties — a record company owns the recording that you know and love; the artist usually owns the song itself whether it’s in the recording you know and love, or coming live out of Celine Dion in a Vegas hotel. Got that? Now, imagine you want to put Electric Avenue into a campaign video. You need Eddy Grant to license the song, even if you plan to sing it yourself or get a cover version made. And if you want the recording that we all know and love (no we don’t) you need both Eddy AND the record company to sign off.
But live performances, either by a band in your local club, or at the fair, or playing over the speakers at a political campaign are different. These generally only require the artist’s side; the license for the song itself, even if it’s the record you know and love coming through the speakers. And the venues, whether it’s your local bar or bigger places that host political events can be expected to have “blanket licenses” which give them the right to perform virtually any song live or recorded for their audience.” When the band shows up at the bar and plays Stairway To Heaven, the license is probably already in place for that and every other Led Zeppelin song. Such broad licenses are administered by royalty collection agencies like ASCAP and BMI because the Fleetwood Macs of the world can’t be bothered. Your local bar probably needs that blanket license just to play Spotify channels over the speakers. The bar has a license for the public performance of virtually every song. That covers a lot of this. There’s a great chance a politician can play whatever they want without having asked permission from the artists themselves.
But not always.
What if the venue doesn’t have that license or forgot to pay the bill? The campaigns don’t need that risk, so they can buy their own blanket license. That way if they happen to accidentally hold their event at Four Seasons Landscaping instead of the Four Seasons they can maybe still play their Lee Greenwood song with impunity.
But not always.
Everything works great until certain artists don’t want to be associated with you. Then we hear about how a politician is getting cease and desist orders, and threats of lawsuits with numbers like $150,000 per infringed work!
ASCAP and BMI responded to their artists’ political sensitivities by creating the political opt-out; essentially a blanket license for everything except for political use. Politics would require consent.
Of course, it’s “opt out,” which means the default status is, in a sense, “opt in.” A politician might just take their chances and hope for the best. That’s where the cease and desist really gets its teeth.
Say you’re the estate of Issac Hayes, who just sued Donald Trump for using “Hold On, I’m Comin,” which we all think of as a Sam and Dave song, but was written by Dave and Issac. Issac Hayes owned part of the song itself. His estate’s claim includes they’ve repeatedly notifed the Trump campaign they can’t use Issac’s song. From there they argue that Trump is “willfully” infringing, which matters a ton, because it’s where you get those $150,000 figures from. While infringing innocently or accidentally might cost you as little as a couple hundred bucks, infringing “willfully” can cost you as much as $150,000.
That’s plenty.
Oh wait, there’s also antitrust law. Suppose you like Spotify but not Apple or Pandora or Tidal, or orange people, can you go around creating opt-outs for whatever you want? Quite possibly not. So are those political opt-out agreements enforceable?
In the end, do these artists sue anyone? Rarely. Most of them are just talk. But can they?? It all depends. The Issac Hayes team is going for it and there’s a hearing in a few days. Maybe I’ll post an update.
Happy Labor Day weekend!
