Can musicians like Rihanna and Axl Rose stop politicians from using their music?
This weekend, Rihanna and Axl Rose became the latest in a long line of musicians to criticize politicians for using their music at campaign events. After Washington Post journalist Philip Rucker tweeted that President Donald Trump’s rally in Chattanooga, Tenn., was blasting Rihanna’s “Don’t Stop the Music,” the singer caustically replied, “not for much longer…” Rose was less certain, tweeting that while he and the rest of Guns N’ Roses had “formally requested [our] music not [be] used at Trump rallies or Trump associated events,” the president’s team was using “loopholes” in music licensing law to get around their opposition. So what recourse do musicians have when they object to their music being used to promote politicians?
As intellectual property lawyer Danwill Schwender laid out in his 2017 academic article “The Copyright Conflict Between Musicians and Political Campaigns Spins Around Again,” most musicians assign their rights to perform their music to a performance rights organization (PRO), from whom venues and events can then license the songs. This means the artists don’t always need to be consulted, but that in turn leaves open the possibility of negative publicity. For instance, Trump played Neil Young’s “Rockin’ in the Free World” at his original campaign kick-off announcement in 2015. When Young’s management criticized this use of his music, Trump’s campaign team replied that they had “done everything legal and by the book,” licensing the song through the PRO known as the American Society of Composers, Authors, and Publishers (ASCAP). Even still, in the face of blowback from Young, they announced they would no longer be using his music going forward.
In his article, Schwender wrote that another PRO known as Broadcast Music, Inc. (BMI) created a separate license for “political entities and organizations” in 2012. This license includes an opt-out clause allowing musicians to withdraw their music from the license “for any reason” before or after it’s been used in a way they don’t like. This was invoked by Queen after “We Are the Champions” was played at the 2016 Republican National Convention, where Trump was officially nominated as the party’s presidential candidate. However, this is not a definitive solution. Schwender wrote that “a venue’s blanket license could supersede a political campaign’s license.” This appears to be what’s happened to Guns N’ Roses. According to Rose, the Trump team is getting around their complaints by relying on venue licenses when playing songs like “Sweet Child O’ Mine” at events.
“Unfortunately the Trump campaign is using loopholes in the various venues’ blanket performance licenses which were not intended for such craven political purposes, without the songwriters’ consent. Can [you] say ‘s—bags?!’” Rose tweeted on Sunday, ending the post with a poop emoji.
Rihanna’s complaint seemed to focus on the association of her music and her fans with Trump. “Me nor my people would ever be at or around one of those tragic rallies,” she tweeted. She’s definitely not the first musician to be angry that a politician’s use of their song might dilute their brand as an artist. Some lawyers have thought about invoking the “right of publicity” laws or the federal Lanham Act, which protects the dilution of a band or artist’s trademark through unauthorized use. But as Melinda Newman wrote in Forbes in 2016 shortly after the Queen/RNC debacle, “The problem is that both of these are untested as far as campaign usages since no artist or songwriter seems to have ever taken a case to trial citing a violation by a campaign — or at least as far as we could find. That’s probably in part because of the expense and that the usages are usually very short-lived, plus, as [ASCAP’s executive vice-president of licensing, Vincent] Candilora points out, ‘our experience has been that when a songwriter publicly objects to the use of a song by a campaign, generally, the campaigns comply with the request.'”
Schwender’s article, too, concludes that “ultimately, negative publicity may prove the most reliable deterrent.” Rihanna, for example, has over 88 million Twitter followers, and her tweet about the Trump rally had garnered over half a million likes as of this article’s publication. In lieu of more legal protections for musicians — Schwender lists some possible proposals such as excluding political events from the rights granted to PROs and/or limiting the fair use doctrine to non-political activities — stars like Rihanna can rely on broadcasting their displeasure to their millions of fans, which can be more trouble for politicians than the songs are worth.