This summer not only did Trump use Beyoncé’s song Freedom as the background to a campaign video posted on social media, his campaign also featured several iconic songs during his rallies including the Foo Fighter’s My Hero and a video of Celine Dion performing her hit My Heart Will Go On. Each of these artists spoke out publicly shortly after the use of their performances surfaced to say that they did not give Trump’s campaign permission.

This is not the first time an artist has been opposed to their work being used by a politician. In 1984 Bruce Springsteen objected to President Ronald Reagan’s use of Born in the U.S.A. In 2008, Sam Moore asked Obama to stop using his song Hold on I’m Coming, and Foo Fighters, Beyoncé and Celine Dion can now be added to a long list of artists (e.g. Rihanna, Phil Collins, Neil Young, Pharrell, Rolling Stones, Adele, Guns N’ Roses) who have spoken out about Trump’s unauthorized use of their songs. But rather than recite a list of musicians who have voted against their songs being used during a political campaign, let’s talk about music rights.

What rights are required to use a song during a political campaign? Is the decision ultimately up to the artist? Or are there other stakeholders implicated? As political teams seemingly continue to upset an ever-growing list of artists, we think it’s a great time to address these questions.

Whether you lean left or right, political campaigns need to obtain music rights

Let’s start with the basics. There are two main components to a song that are separately protected under Canadian and United States copyright legislation. First, there is the musical composition which is the specific combination and arrangement of musical notes and/or lyrics. In other words, the song that is embodied in the sound recording. Next, there is the sound recording itself (i.e. the "master") which embodies a performers performance.

Playing music live

When a recorded song is played live, both components may trigger public performance royalties. These royalties may arise upon the public performance/communication by telecommunication of a composition and sound recording, whether on radio, television, in live performance or by way of online streaming. In Canada, up until 1997, only compositions generated public performance royalties. This meant only music publishers and composers were entitled to payment when a composition, even as embodied in a sound recording, was broadcast or performed publicly. Following copyright law reform in 1997 in Canada, performers and “makers” (i.e., record labels) are also entitled to payment for the broadcast and public performance of their recordings. This means that playing recorded music in public at live events requires two licenses:

(1) from the collective society that is responsible for collecting and distributing payments to the performer and the record label (in Canada, it is Re:Sound); and

(2) from the collective society that is responsible for collecting and distributing payments to composers and publishers for the performance of the composition that is embedded in the sound recording (in Canada, it is SOCAN).

Music in a video

To incorporate a musical work and the recording into a video, a different license must be obtained. So, if a political organization wants to use a Beyoncé song in a campaign ad on television, they will need to acquire a “synch” license and a “master use” license. These licenses cover the rights that are necessary to incorporate the musical work and the recording into the video and are usually available directly from: (1) the music publisher (for the use of the musical work); and (2) the record label (for the use of the artist’s recording of the song). Therefore, if the agreement between the songwriter/artist and the publisher/record label calls for songwriter/artist approval over synch/master use licenses, an artist may have the opportunity to deny that political organization the right to use their music in campaign videos.

Who gets the final vote at rallies?

Is it up to the songwriters and artists to decide if their music is used at live events by certain political campaigns? Not necessarily.  For political rallies in Canada, the licenses required to play compositions and recorded music in a public space are typically obtained by the venue and billed to the campaign.  However, larger venues may require the renter of the space to obtain the license on their own. In the United States, political campaigns can acquire specific “political campaign licenses.”

In all cases, collective societies issue blanket licenses which allow the licensee to use large troves of songs/recordings from their vast catalogs. In Canada, if a songwriter’s or artist’s music is part of the collective’s catalog, and licenses are obtained properly, the songwriter/artist will not necessarily have an opportunity to object to its use. The situation is similar in the US (although is limited to compositions), but if a political campaign license is acquired, songwriters can object to the use of their songs, in which event the applicable songs are pulled from the license. This means that if a political team obtains appropriate licenses, it would have the right to play Foo Fighter’s My Hero, without Dave Grohl’s consent.

But, there’s a Monkey Wrench

Paying licensing fees to use a song publicly may not prevent an artist from having other potential claims against the user – especially if the user is a highly divisive political figure. When an artist’s music is used by a political campaign, the artist may have a claim for misappropriation of personality rights. There can often be significant value in a celebrity’s endorsement and personality rights describe an individual's exclusive right to exploit their image or personality, including their voice and possibly their association with a song. Artist’s may also look to the tort of passing-off (and Section 7(b) of Canada’s Trademark Act), which protects against misrepresentations stemming from the unauthorized use of a person’s name or likeness.

Additionally, an artist may be able to claim that there has been an infringement of their moral rights. Moral rights are afforded to artists and creators in Canada under the Copyright Act. Moral rights are non-economic rights that protect artists’ personal interests. Particularly, these rights protect their reputations. Where a political campaign uses a song without permission from the artist directly, the artist may try to claim that there has been violation of their moral rights of integrity and association.

Music rights are complex and can bring the wrong kind of attention to a political team’s campaign. If you are unsure what licenses are required, make sure to seek legal counsel.