Though music at campaign rallies is as American as apple
pie, many campaigns are learning the hard way that in order to play a song,
they may need to do more than just acquire a public performance license from
ASCAP, BMI or SESAC. The blanket
licenses offered by these performing rights organizations (“PRO”) do shield
campaigns from copyright claims, but musicians are now exercising their rights
beyond those given to them under the U.S. Copyright Act. Recently, campaigns are receiving cease
and desist letters from musicians alleging a right of publicity claim under
state law, a trademark infringement claim, or a false endorsement claim under
the Lanham Act solely because the campaign played the song at an event.
Larry Iser, a lawyer who represented Jackson Browne against
John McCain and David Byrne against Charlie Crist, argues
that “[b]y using
someone’s famous song, you are turning that artist into an involuntary endorser
of that campaign and message.” This
false endorsement claim, in the context of background music performed at
political rallies, has not been decided upon by a court of law as of
yet—however, it certainly is a winning argument in the court of public opinion.
In most situations, after receiving a
cease-and-desist letter, a campaign will simply stop playing the song. But do they have to? Under similar, but not identical facts, the Second
Circuit ruled in Oliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2001) that a musician cannot
assert a false endorsement claim because a company used the musician’s
performance of a song in their television commercial. It stated that such a right is unprecedented
and would be “profoundly disruptive to commerce.” Adopting its reasoning, the
court in Henley v. DeVore, 733 F.
Supp. 2d 1144 (C.D. Cal. 2010) agreed that a false endorsement claim under the Lanham Act
cannot be maintained “based purely on the use of [a musician’s] songs” by a
campaign in a campaign video.
Though
these cases involved audiovisual works, which require a synchronization
license, it is reasonable to assume that the courts’ reasoning would also apply
to the public performance of music at a campaign rally. Ben Sheffner, former Special Counsel on John
McCain's presidential campaign, argues that recognition of a false
endorsement claim for the public performance of music would “in fact harm copyright
owners' ability to license their works.” He claims that if a licensee, such as a bar,
music venue or even campaign, secures a bona fide blanket license from a PRO,
thus paying all known right holders a fee to publically perform the song, it
would be illogical to allow musicians to go back and demand additional
compensation under a claim of false endorsement.
Though
a false endorsement claim for publicly performing a song does not have much
legal support today, this may not be the case in the future. Cycle after cycle, cease-and-desist letters
have been effective in preventing political campaigns from publicly performing
a musician’s song. Even though this may
be due to a campaign’s unwillingness to engage in a legal battle over these
types of matters, campaigns may be doing themselves more harm than good. By constantly submitting to the demands of
musicians, they are effectively admitting that a false endorsement claim may be
valid. In fact, presidential candidate
Mitt Romney has implicitly acknowledged this claim when he asked for Kid Rock’s permission to
use his song “Born Free” even though he already secured a BMI license to
publicly perform it. The more frequently
this acknowledgement occurs, listeners may actually begin to believe that songs
publicly performed at campaign events are a form of endorsement by the musician
of the campaign and its message; therefore, giving credence to a false
endorsement claim under the Lanham Act.
