Survivor, R.E.M. Disputes With GOP Candidates Highlight Perennial Music Licensing Issue

“Do not use our music or my voice for your moronic charade of a campaign,” Stipe said via R.E.M. bassist Mike Mills’ Twitter account. R.E.M. subsequently said in a statement that “we do not authorize or condone the use of our music at this political event, and do ask that these candidates cease and desist from doing so.”

Survivor co-founder Jim Peterik separately criticized GOP candidate Mike Huckabee for using “Eye of the Tiger” without the band’s permission during a Sept. 8 rally to celebrate the release of Kim Davis, the Rowan County, Kentucky, clerk who had been jailed for refusing to issue marriage licenses to same-sex couples. Huckabee’s use of the Survivor song “does not reflect my views,” Peterik said on Twitter. Peterik also threatened Huckabee with a possible cease-and-desist order.

Disputes between performers and politicians over the perceived misuse of music during campaigns has “been a problem for decades,” said Dina LaPolt of LaPolt Law, an IP and entertainment law firm. The issue is gaining more attention with each campaign cycle because of heightened media visibility, said Public Knowledge Vice President-Legal Affairs Sherwin Siy. “We’re probably hearing about it more now because artists are more aware of what’s being played on the campaign trail,” he said. “People are posting clips of these events on YouTube and other web outlets, so it’s getting out more frequently than it would have eight years ago.” The R.E.M. and Survivor disputes prompted several music industry groups to issue guidance on music licensing for political campaigns, including the Future of Music Coalition and RIAA.

Much of the law on use of music during political events is settled, Siy said. Candidates typically are covered by a performance license that the venue hosting the event has with performing rights organizations (PROs) like the American Society of Composers, Authors and Publishers or Broadcast Music, he said. “If they’re in a venue that doesn’t have that kind of license, the people doing the public relations for a campaign typically approach the PROs directly.”

Legal issues are more likely to occur when footage from the event that contains the music is then used in subsequent campaign materials like commercials or if the event is streamed online, LaPolt said. “If that’s the case, it triggers synchronization use since under Section 106 of the Copyright Act you can’t alter anyone’s music without their written permission,” she said. “Whenever you use a piece of music over visual art like footage of a rally, it triggers derivative use and you have to get an additional permission from the copyright holder.”

Artists can also claim that unauthorized use of the music during a political event “falsely implies endorsement by the artist” -- the claim LaPolt Law most frequently files against campaigns, LaPolt said. “For sound recordings, the limited public performance right that exists in the U.S. wouldn’t typically apply in these cases” if the music isn’t used in campaign materials, music industry attorney Chris Castle said. “What’s left to the artists are issues like consumer confusion and implied endorsement arguments,” though case law involving political campaigns is minimal. “There’s been lots of litigation about using recordings in campaign ads,” but it would “be tough” to prove implied endorsement if the music is only used when the candidate goes onstage, Castle said. “If the candidate starts using this every single time they appear and it becomes known as their theme song, then it’s a little bit easier for the artist to make that argument.”