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Congressionol Research Service
nforming the IegisI9tive debate since 1914
S
October 2, 2024
Copyright and Uses of Music by Political Campaigns
During election seasons, news stories often report of
musicians and songwriters objecting to uses of their music
by political campaigns. Sometimes, these artists send cease-
and-desist letters, threaten or file lawsuits, or otherwise
publicly demand that candidates stop using their songs or
recordings at political rallies or other events.
The legal basis for these demands is not always clear, but
the artists often claim infringement of their copyrights.
Some artists have also asserted noncopyright claims such as
false endorsement under the Lanham Act or violation of
their rights of publicity under various state laws. This In
Focus explains the legal principles governing these claims.
Copyright in Mus c
Copyright law grants the authors of original creative works
(e.g., books, movies, or fine art) a set of exclusive rights in
their creations. Those rights include the right to prevent
others from copying or selling the work, or making
derivative works from it, without the copyright holder's
permission. For some types of works, copyright includes an
exclusive right of public performance as well. For example,
even if the owner of a theater has legally purchased a copy
of a movie, the owner would also need separate permission
before playing the movie to a public audience.
There are two distinct types of copyrights applicable to
musical creations. The copyright in a musical work covers
the work of the music's composers and lyricists
(collectively, songwriters). The copyright in a sound
recording covers the work of the musicians, singers,
producers, or engineers who perform and record a piece of
music (collectively, performing artists). Copyright in a
musical work initially vests in the songwriter(s) and is often
assigned to a music publisher. Copyright in a sound
recording initially vests in the performing artist(s) and is
often assigned to a record company. For more information,
see CRS Report R43984, Moneyfor Something: Music
Licensing in the 21st Century, by Dana A. Scherer.
For musical works, Congress has long recognized an
exclusive right of public performance. Thus, any entity or
venue seeking to perform musical works publicly-for
example, a symphony orchestra, music club, or radio
station-generally needs to seek permission (i.e., a license)
from the copyright holders, and typically pays the copyright
holders a fee (sometimes called a royalty) in return.
Copyright in sound recordings has more limited rights
under U.S. law. In the 1970s, Congress first granted
copyright to sound recordings but declined to provide these
works an exclusive right of public performance. (Thus, to
play a song over the air, radio stations only need permission
to use the musical work and not the sound recording.) In
1995, Congress granted sound recordings an exclusive right
of public performance but only for certain digital audio
transmission[s] (e.g., interactive streaming services).
Performin Rights Organizations
To enforce their copyrights against unauthorized public
performances of their musical works, songwriters and
music publishers have formed performing rights
organizations (PROs) since the early 20th century. The
American Society of Composers, Authors, and Publishers
(ASCAP), formed in 1914, was the first U.S. PRO. Other
PROs include Broadcast Music, Inc. (BMI), SESAC
(formerly the Society of European Stage Authors and
Composers), and Global Music Rights (GMR).
Songwriters and publishers may license their public
performance rights to PROs, which in turn issue licenses to
businesses and other users who want to play or perform
musical works. PROs generally issue a blanket license,
allowing licensees to perform publicly any musical work in
a PRO's catalog for a flat fee or a percentage of total
revenues. After charging administrative fees, PROs split the
public performance royalties they collect among their
members based on play frequency, among other factors.
PROs thus offer logistical benefits to both copyright holders
and users of musical works. The types of licenses offered
by PROs are typically based on the nature of the user. For
example, ASCAP offers different licenses for radio stations,
nightclubs, gyms, orchestras, and concert venues.
Licenses for Uses of Musc by Potica
Campaigns
The permissions needed to use copyrighted music or
recordings depends on the particular use that is being made
of the works. In political campaigns, copyright issues often
arise for two different types of uses: (1) playing music for
audiences at in-person events (e.g., campaign rallies); and
(2) using music in campaign advertisements or videos.
Uses of Music at Campaign Rallies
For use at campaign rallies-presuming that the campaign
purchased a legal copy of the recording (e.g., on physical
media or via a subscription service)-the campaign will
typically need a public performance license to play the
musical work for the audience. Because sound recordings
lack a general public-performance right, permission is only
needed from the musical-work copyright holders (i.e., the
songwriters or their assignees). This license can be obtained
directly from the copyright holders, or through a PRO.
In some cases, the venue holding the event (e.g., an arena,
hotel, or fairgrounds) may already have a license from one
or more PROs. In that case, the performance would be
authorized if it falls within the venue's license and the song
is in the catalog of the particular PRO. According to](ViewImageLocal?handle=hein.crs/govequw0001&div=1&collection=&method=preview&ext=.png&size=3)
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