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The Politics Of Dancing

Can Trump use any music he likes?

Richard Kirstein

Founding Partner, Resilient Music LLP

10/11/2018

Artists and Politicians can be unlikely bedfellows. Donald Trump has provoked dismay from superstar acts for using their music at political rallies without permission.

Some have resorted to legal action, such as Aerosmith’s Steven Tyler and most recently Pharrell as reported in this BBC story. They join a long list of artists reported by Vulture. With each new incident, puzzled marketers ask me how this can happen. In contrast, music for their brand’s video content can only be used with prior approval.

The issues here are public performance, synchronisation and endorsement.

Most conference venues in the UK have public performance licences for the audio playback of songs and sound recordings. Where once these were licensed separately by PRS (for songs) and PPL (for recordings), there’s now a joint licence available from PPL PRS Ltd. With such a licence in place, any background music within PPL PRS Ltd controlled repertoire can be played in the venue without prior approval.

In the USA, the situation is more complex. There are four Performing Right Organisations that represent songwriters and music publishers (ASCAP, BMI, SESAC and GMR) but no direct equivalent of PPL to represent artists and record labels for public performance rights in physical venues. That said, if you attend a conference event in the US and hear background music played over the sound system, it’s unlikely that each track would have been individually cleared. The conference organisers would probably view the use solely as public performance, covered by whichever licences the venue already had in place, possibly via an intermediary music service.

Political rallies are partisan by definition, designed to capture hearts and minds whilst polarising supporters and opponents. Like most politicians, Donald Trump understands the power of music to engage his audience. He appears not to worry if his musical choices upset the artists behind the tracks. Some may argue this could be his strategy if those artists are known to have Democrat rather than Republican sympathies.

If Trump’s rallies were entirely private affairs, neither we nor the artists would ever know that their music was used. However, mainstream news media capture the event for broadcast, live streaming and VOD usage. This includes music that’s audible in the venue. Whilst music rights owners, artists and songwriters might argue this constitutes synchronisation, Trump’s team might retort that it’s the responsibility of each media outlet to secure the necessary licences. The onus is usually on the producer of the content to license any third party rights. For news coverage of a political rally, news media might claim that Fair Use applies (similar to Fair Dealing outside the US). It appears that music can be used in broadcast and online coverage of the rally without the prior approval of the rights owners, artists and songwriters. Understandably this causes great consternation.

Political speajer

Beyond synchronisation, there’s the issue of implied support. When a politician walks on stage to rapturous applause from the party faithful, accompanied by an anthemic song, the artist and songwriter may feel such use will be perceived as endorsement. Trump clearly knows how to engage his core supporters, often with views that some in the creative community find objectionable. With limited ability to withhold approval in the public performance and synchronisation contexts, some artists resort to cease and desist letters. Artists may try to claim their moral and/or endorsement rights have been infringed. Whether this is sufficient deterrent to a politician will depend on how the fracas is expected to play out with their core supporters. Some politicians may care more about the court of public opinion than the threat of legal action from an artist. 

Returning briefly to the public performance point, there’s an interesting caveat here for songs controlled by BMI. As reported by Vox, there is a provision for songwriters to request that their works are withdrawn from repertoire available to a political campaign under a blanket public performance licence for a venue. In this way, it appears both Queen and Adele were able to prevent Trump using their songs.

The relationship between music and politics is complex. When New Labour used D:Ream’s “Things Can Only Get Better” it was done with the support of those behind the song as reported by The Guardian. Trump clearly takes a different approach to Blair. Whilst we might argue both are/were CMOs of their respective parties, are there lessons to be learned for consumer brands?

  • Few consumer brands want to polarise public opinion as starkly as Trump
  • Incurring the wrath of famous artists and songwriters may have consequences
  • Both artists and their fans may seek to create reputational damage to a brand
  • Relying solely on public performance licences may be legally correct but may not be perceived as such by artists and fans
  • If a branded event is captured and the video shared, it’s safer to seek individual synchronisation clearances up-front, sanctioned by the relevant artists and songwriters.
  • The quote “It’s easier to ask forgiveness than it is to get permission” is not a recommended strategy for brands. It’s far better to secure prior approval.
Brighton

Richard Kirstein is based at Brighton Eagle Lab

Barclays are investing in the future of the London road area of Brighton & supporting businesses to embrace new and emerging technologies critical to the success of businesses in the UK.

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