In almost every election cycle, musical artists are surprised to find their songs being played without their permission at campaign events hosted by politicians that they don’t support, and seek recourse to copyright law in order to prevent further performances. And, in almost every election cycle, they are, as a legal matter, usually dead wrong.
In 1984, Bruce Springsteen objected to Reagan’s use of “Born in the U.S.A.”; in 1996, Isaac Hayes argued that Bob Dole should be precluded from implying the he was a “Soul Man” (when the Dole Campaign re-titled the track “Dole Man”); in 2000, Sting sought to prevent George W. Bush from playing “Brand New Day” at campaign events; and in 2012, Survivor filed suit against Newt Gingrich for the use of “Eye of the Tiger.” In this respect, the 2016 presidential election is shaping up no different. But in almost every other way, the election process has been turned on its head by one man: Mr. Donald Trump, who is having difficulty finding a musician who will approve of their songs being played at his events. Mr. Trump has received a cease and desist letter from Aerosmith’s Steven Tyler and most recently drew public criticism from Adele this week, who explained ”Trump Doesn’t have Permission to Use My Music” after her single “Rolling in the Deep” was played at a Trump rally.
Trump appears to disagree and, as much as it pains me to say it, Trump is right and Adele is wrong. This conclusion, which one will rarely hear uttered, has nothing to do with politics and everything to do with the structure and organization of performance-rights organization (PROs) like the American Society of Composers, Authors and Publishers, more commonly known by its acronym ASCAP, and Broadcast Music, Inc. (BMI).
These organizations provide a two-sided platform to facilitate commerce between those who wish to publicly play music created by artists and the artists themselves. Generally, this is done by granting a license to all of the songs registered in a particular PRO’s repertoire to those individuals (such as politicians) who would like to play them publicly, in exchange for a licensing fee. That fee is then transferred, in the form of royalties, to the musicians themselves, minus an administrative fee taken by the PRO.
The upside of this arrangement is efficiency: those wishing to play music do not have to seek out every musician and individually negotiate the terms of a license, and musicians do not have to incur the expense of monitoring and billing every radio station that plays their songs. Instead, the PRO functions as an intermediary to serve both of those roles.
The downside is that it permits the PRO to grant licenses without any individual artist’s specific knowledge or permission. As such, so long as he was granted permission by BMI, Trump likely did not need Adele’s permission to play “Rolling in the Deep,” which appears to be included in BMI’s repertoire.
So what are Adele, and others like her, to do when copyright law has failed them? As it turns out, at least one possible alternative originates not out of copyright law at all, but rather from the common-law of tort. In Zacchini v. Scripps-Howard Broadcasting Co. 433 U.S. 562 (1977), the U.S. Supreme Court recognized a tort to enforce a “right of publicity” against the misappropriation of one’s likeness for commercial purposes, when a performer objected to the broadcast of a film of him performing “the entire act” of the “human cannonball” without his permission. A similar cause of action was also created by the federal Lanham Act (also known as the Trademark Act of 1946), which permits a claim to be brought in cases of “false endorsement,” or when a publication or performance falsely implies an association, connection or affiliation.
These type of claims, sometimes referred to as claims for “personality rights,” might be a more successful avenue for artists who have made use of a PTO to assert, as an alternative to a copyright claim, that the use of their music by a political campaign has implied an endorsement when — as is clearly the case with Trump and Adele — none truly exists.