Mcle Self-study Article

• Jurisdiction: United States,Federal
• Author: Joachim B. Steinberg
• Publication year: 2021
• Citation: Vol. 46 No. 1

MCLE Self-Study Article

Joachim B. Steinberg

Browne George Ross O'Brien Annaguey & Ellis

CAMPAIGNS AND COPYRIGHTS: THE USE AND MISUSE OF MUSIC BY POLITICIANS

(See end of this article for information on receiving 1.0 HOUR MCLE self-study credit in Ethics. )

* * *

Sometimes the world is beyond satire. Like when the heir to a real estate fortune, who avoided military service because of student deferments and a dubious medical classification,¹ enters a campaign rally to Creedence Clearwater Revival's "Fortunate Son."² But politicians missing the point is not a new story. The interesting question is what happens when musicians see a politician that they oppose, or even detest, using their work. Do politicians have a right to use the music of their choice? Do musicians have any ability to stop them from using their music?

As Usual, Blame Player Pianos

Let's start with the basics.³ A song usually has two separate copyrights: the song itself—the sheet music and words—and the recording of the song. The rights to the actual recording are typically divided even more, into mechanical rights, or the rights to physical copies or streams of the recording; synchronization rights, or the rights to use the recording in other media, like television or film; and performance rights, or the rights to play the recording over the radio or at an event. It's this last right that we're concerned with here.

A copyright holder has the exclusive right, "in the case of...musical...works...to display the copyrighted work publicly;" and "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."⁴ So if you want to play a recorded song (that isn't your own) at an event, you either need permission from the rights-holder or a good defense.⁵ For most businesses, and events, this means a license from one of the performing rights societies,⁶ sometimes called copyright collectives.

In response to new technologies,⁷ including the player piano and the burgeoning sheet music industry, early 20th Century industry stakeholders looked for ways to regulate and profit from the transmission of musical copyrights.⁸ In 1914, composers, lyricists, publishers, and attorneys banded together and created the American Society of Composers, Authors, and Publishers ("ASCAP.")⁹ ASCAP operates as a repository of copyrights. It holds the public performance rights to works by its members and collects license fees to those works, and sues on behalf of its members for copyright infringement.¹⁰

With the growth of radio in the 1920s and '30s, these licenses became even more important. In the face of increasingly rapacious behavior by ASCAP,¹¹ Broadcast Music, Inc. ("BMI") was founded in 1939 as a competitive alternative to ASCAP.¹² BMI offered lower-cost licenses and made a point of acquiring the catalogues of Black songwriters and musicians, who had often been shut out of ASCAP.¹³

While there's a fascinating (no, seriously!) antitrust history around these two groups,¹⁴ that is beyond the scope of this article. For our purposes, what is important is the current situation. As it stands now, ASCAP, BMI, and a handful of other licensing groups acquire the public performance rights to music recordings, and handle licensing and enforcement of those rights under "blanket licenses."

In the hundred or so years since ASCAP started issuing blanket licenses, this system has generally worked more-or-less as intended, despite some flaws. While the general consensus is that the blanket-license system is economically efficient,¹⁵ artists have often felt that they were not compensated fairly for their work.¹⁶ And this doesn't even begin to address the problems mentioned earlier about ASCAP's historical exclusionary and racist practices. But for the issue of creating a relatively simple way to obtain a license to play recorded music in public, this system has proven itself to be durable and manageable. That said, the regime contains at least one other major blind-spot: once artists have licensed their work to a copyright collective, can they maintain any control over who uses that work?

[Page 5]

Campaign Soundtracks

Let's say I wanted to use a piece of music at an event. The first thing I would do is look up which licensing group held the public performance right. Once I've identified that, I can apply for a license. BMI even offers a political entities license for just this purpose. Pretty simple so far. But there's an issue lurking here: what if artists find the politician who wants to use the music repugnant? If they do, can they stop the politician from using their works?

The short answer is no. Even if an artist finds the politician repugnant, as long as that politician has secured the proper license, the politician can use the...