Dear Doc:
Political campaigns seem to have become entertainment, featuring musical introductions, interludes between speeches, and soundtracks to commercial spots. But what if a musical artist disagrees with the positions of the sponsor of the event? Can she prevent the use of her music entirely, or charge a very high royalty, which she then donates to the opposing candidate?
Signed,
TS (xoxo)
Dear TS:
Funny you should ask! A recent lawsuit filed by the estate of the late songwriter Isaac Hayes against Donald Trump, the Republican Party and the National Rifle Association accuses them of infringing use of Sam & Dave’s song, “Hold On, I’m Comin’” at least 134 times. The estate demanded a royalty of $3 million, and when that was not paid, the lawsuit followed. Last week, the federal court granted a rare emergency hearing on an injunction request from Isaac Hayes III and the Hayes estate. If the injunction is granted, it would be one of the first successful suits brought by a recording artist against Trump over his campaign’s use of music.
Other recording artists have also objected to the Trump campaign soundtrack: Celine Dion objected to the Trump campaign. “In no way is this use [of My Heart Will Go On] authorized and Celine Dion does not endorse this or any similar use,” said a statement from the singer. Bruce Springsteen, Rihanna, Pharrell Williams, John Fogerty, Neil Young, REM, Guns N’ Roses, the Rolling Stones, the Village People, Aerosmith, Foo Fighters, Beyonce, the Beatles, Adele, Phil Collins and Eddy Grant have written to raise objections. The estates of Leonard Cohen, Tom Petty and Prince have also threatened legal action.
Musicians normally do not control the use of their music, preferring to let artists’ rights organizations such as ASCAP and BMI handle the licensing and collection of royalties. Those organizations, in turn, have created political licenses that allow the use of a broad catalog of songs, provided that the proper royalties are paid. Artists, however, have the right to withdraw their songs from the political license. Once they do that, a candidate must obtain separate permission to use the song.
In addition to relying on copyright infringement claims, some rights owners take the position that a politician’s use of an artist’s song implies a political endorsement of that candidate where none exists and leads to consumer confusion, which is not permitted under the Lanham Act. When a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service, this becomes actionable. 15 U.S.C. § 1125.
Have more questions about intellectual property? Ask the attorneys at LW&H. They don’t have a theme song (yet).
Until next month,
The “Doc
— Lawrence A. Husick, Esq.