Politics Playlist: A History of Music Licensing for Political Campaigns

Jackson Weist, Contributing Member 2024-2025

Intellectual Property and Computer Law Journal

I. Introduction

In September 2024, Meg and Jack White of rock band The White Stripes sued President Donald Trump over his use of their song “Seven Nation Army” in a campaign advertisement.[1] Trump did not obtain any license or permission from the Whites to use the song, and they are not the only artists whose songs his campaign has used without permission.[2] Trump is not the only presidential candidate who has faced backlash from the artists whose songs have been used as part of a political campaign.[3] Political campaigns have sought to capitalize on the popular nature of music for as long as there have been political campaigns, and in many cases, to the dismay of artists who disagree with their messages.[4]

This article explores the history of artists fighting against their songs being used in political campaigns they disagree with, and the impact that has had on the music licensing industry. Part II provides background on music licensing and a history of political campaigns using music as part of their messaging. Part III looks at the recent history of artists fighting back against unauthorized use of their music in campaigns. Part IV concludes by considering how this issue plays a role in the 2024 election, and the lawsuits facing President Donald Trump.

II. Background

Copyright Law

In the United States, copyright law provides the creators of artistic works with a limited monopoly over their creations.[5] Creators are given several exclusive rights and control over   reproduction of the work, derivative works, distribution of copies of the work, the work’s public performance and display, and in the case of sound recordings, the digital transmission of the work.[6] For example, an artist who makes a wholly original painting has complete control over reproductions of that painting and where and when it is shown publicly. For music, artists hold the right to control where and when their songs are publicly performed, and any performance of their songs without their consent is an infringement of their copyright.[7]

Music Licensing

How are places like restaurants, stadiums, and radio stations able to play popular music aloud without getting sued? There are millions of songs currently copyrighted, and it would be prohibitively expensive and time consuming for one of these places to secure every right to every song they play from the individual artist. To avoid all of this, Performing Rights Organizations (“PROs”) were created to be the middlemen between musical artists and those seeking to use their works.[8] PROs ensure that both businesses are compliant with copyright law, and artists are paid their due royalties for performance of their works.[9] An artist can give a PRO the performance rights to their music and the PRO licenses this right out to whomever wants to publicly perform these works.[10] These licensees report back to the PRO when that song is played, and the PRO distributes royalties to the artist accordingly.[11] In the United States there are three PROs – Broadcast Music Inc. (BMI), American Society of Composers, Authors and Publishers (ASCAP), and The Society of European Stage Authors and Composers (SESAC) – and each operate in slightly different ways.[12] For example, SESAC is by invitation only, holding only the rights to artists that they invite to be a part of their catalog.[13] This means SESAC has a comparatively smaller catalog, but one containing only well established and popular artists such as Bob Dylan, Ariana Grande, and Adele.[14] Conversely, BMI and ASCAP are application based, where any artist may apply and pay a fee for their works to be a part of their catalogs.[15]

For example, if a restaurant wanted to play a song by The White Stripes, rather than having to look up who owns their music, contact them, and then purchase the rights from them – they could instead purchase a license with ASCAP or BMI. The license would not only give the restaurant the right to publicly perform songs by The White Stripes, but a whole host of other popular songs too.

Political Campaign Use of Music

American political campaigns have been successfully utilizing music as a tool to enhance their messaging since the very beginning – initially by creating original songs on behalf of the candidates.[16] While he did not run what we would know today as a campaign, supporters of George Washington’s bid for presidency created a parody of “God Save the King” dubbed “God Save Great Washington.”[17] This did not always work, however, as John Quincy Adams’ campaign song “Little Know Ye Who’s Coming,” a warning against the dangers of Andrew Jackson, did not stop Jackson’s landslide victory in the 1828 election.[18] 

One of the most famous early examples of music as a part of a political campaign is William Henry Harrison’s 1840 campaign song “Tippecanoe and Tyler Too.”[19] The song played a pivotal role in Harrison’s campaign, which was the first campaign in American history to take the grassroots, mass-appeal approach that we now come to expect every election cycle.[20] Harrison attempted to portray himself and running mate, John Tyler, as down-to-earth Americans, focused on a “log-cabin” appeal. The song played a crucial role in making this message effective.[21] 

The first time a presidential candidate used an already written song for their campaign was during the 1932 election. Franklin D. Roosevelt’s campaign used the song “Happy Days are Here Again” from the musical film Chasing Rainbows.[22] The use of the song was so successful that it became the anthem of the FDR campaign and entire Democratic Party’s platform exiting the Great Depression.[23] The great success of using this song led many other political campaigns throughout the 20th century to use existing songs as parts of their campaign.[24]

III. Discussion

Artist Backlash

The first time an artist fought back against the use of one of their songs in a political campaign was when artist Bruce Springsteen denied the use of his song “Born in The U.S.A.” during Ronald Reagan’s 1984 re-election campaign.[25] The Reagan campaign asked Springsteen if they could use the song, yet after declining to allow the use of his song Reagan still referenced Springsteen and his song during a campaign speech in New Jersey.[26]  Reagan referred to Springsteen and his song as a ”message of hope” despite Springsteen explicitly rejecting Reagan and his message. Springsteen never pursued any legal action against Reagan or his campaign but became vocal about his dislike for Reagan and his politics. [27]

Despite the strong protections that copyright law gives to artists, the history of licensing music for political campaigns has been much like Springsteen and Reagan, where the artist speaks out and the campaign stops using the song without legal action being taken.[28] Obtaining a blanket license to use songs, such as the political campaign directed packages which BMI and ASCAP offer, bars copyright infringement as a cause of action for stopping a campaign’s use of a song during rallies. However, it remains effective against unauthorized use in commercials or other such advertisements. Without copyright infringement as a proper cause of action for artists in these situations, lawsuits against campaigns needed to use different intellectual property doctrines and found success doing so during the 2008 presidential campaign.

Jackson Browne’s Success in the Legal System

During the 2008 presidential campaign, singer Jackson Browne sued candidate John McCain, the Republican National Convention and Republican Party of Ohio for the use of his song “Running on Empty” in a commercial critiquing high gas prices.[29] Browne alleged McCain and the RNC committed copyright infringement, false endorsement, and violated his right of publicity.[30] The case was eventually settled outside of court, so a judicial decision regarding Browne’s copyright infringement and false endorsement claims are not available.[31] However, in denying McCain’s motion to strike the right of publicity claim, the Court did address the claim’s merits.[32]

Right of publicity is an area of intellectual property law dealing with a person’s right to control how they are presented in a commercial context.[33] The right is a creature of state law, so each state has a slightly different standard but generally a plaintiff must assert the following: 1) the defendant used their identity without consent, 2) the defendant gained some kind of advantage for the use of the plaintiff’s identity, and 3) the plaintiff suffered injury as a result.[34] In Browne v. McCain, the Court found that Browne’s claim met these factors and focused mainly on the second and third.[35] First, regarding the advantage for use of his identity, the Court reasoned that Browne’s voice is so well known that audiences would believe he was endorsing the campaign and so the ad got more attention than it would have otherwise gotten without his voice.[36] Second, as to Browne’s injury, this false endorsement of the ad harmed his reputation because it led people to believe he was supporting a candidate he did not. Even if he did support the campaign, the Court also reasoned that Browne lost the the opportunity to license his voice to the campaign.[37] However, as this was just a motion to strike the claim, the ruling was just that Browne had a probability of success, so no precedent-setting judgment was made. [38]

Effect on the Licensing Industry

Since Browne, there has been a surge of artists successfully getting their songs out of unwanted political campaigns.[39] In 2010, David Byrne of the band Talking Heads succeeded in a case against then Florida Governor Charlie Crist for use of one of Byrne’s songs in an ad criticizing his gubernatorial race opponent.[40] Again, this suit was settled outside of court, and Crist issued an apology.[41]

Both BMI and ASCAP now allow artists to request their music to be taken out of their respective political campaign licensing packages, opening the door for artists to have more success in suits for copyright infringement even if the politician in question has a PRO license.[42] While again a judicial precedent has not been established, ASCAP has a frequently asked questions document listing ways that campaigns should be careful regarding right of publicity and false endorsement claims.[43] For example, they suggest campaigns reach out for approval directly from the artists before using songs, even if the candidate has a license.[44] Precautions like this allow PROs to keep political campaigns as customers and give candidates the opportunity to keep using popular music as part of their campaigns, while also respecting artists’ wishes to not have their music in campaigns they disagree with.

IV. Conclusion

Artists are now emboldened to fight back and speak out against the unauthorized use of their songs in political campaigns. President Donald Trump is facing several complaints from artists, multiple lawsuits, and even received a legal notice from Universal Music – the largest recording label in the US.[45] Whether these suits will result in an actual judicial decision regarding an artist’s right to take their songs out of a campaign or they simply settle as they have in the past remains to be seen. However, given the high level of backlash Trump is receiving for his use of music, it is clear artists are emboldened to take a stand and assert whatever rights they can to keep their music out of campaigns they do not support.

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[1] Dee Jefferson, White Stripes Sue Trump Over Flagrant Misappropriation’ of Hit Song, The Guardian (Sep. 9, 2024, 9:30 PM), https://www.theguardian.com/music/article/2024/sep/09/white-stripes-trump-lawsuit-seven-nation-army [https://perma.cc/P6PS-LWKK].

[2] Id.

[3] Eveline Chao, Stop Using My Song: 35 Artists Who Fought Politicians Over Their Music, Rolling Stone (July 8, 2015), https://www.rollingstone.com/politics/politics-lists/stop-using-my-song-35-artists-who-fought-politicians-over-their-music-75611/bruce-springsteen-vs-ronald-reagan-bob-dole-and-pat-buchanan-28730/ [https://perma.cc/54ND-DJCR].

[4] Id.

[5] 17 U.S.C. § 101.

[6] 17 U.S.C. §106.

[7] Id.

[8] What is a Performing Rights Organization (PRO)? sesac (May 5, 2022)  https://www.sesac.com/what-is-a-performing-rights-organization-pro/ [https://perma.cc/AQ33-6B53].

[9] Id.

[10] Id.

[11] Id.

[12] Jenae Jean, How to Be A PRO – Performing Rights Organizations, Perennial Music and Arts (Mar. 29, 2022) https://www.perennialmusicandarts.com/post/_pros [https://perma.cc/H4LD-XNF4].

[13] Id.

[14] About Us Page, sesac, https://www.sesac.com/about/#:~:text=SESAC%20currently%20licenses%20the%20public,Emile%20Mosseri%2C%20and%20many%20more [https://perma.cc/T9H7-UFR8].

[15] Jean, supra, note 12.

[16] Claire Suddath A Brief History of Campaign Songs, Time, https://content.time.com/time/specials/packages/article/0,28804,1840981_1840998_1840892,00.html. [https://perma.cc/C75P-7E4D].

[17] Id.

[18] Id.

[19] United States presidential election of 1840, Britannica, https://www.britannica.com/event/United-States-presidential-election-of-1840 [https://perma.cc/5WCS-C3HQ].

[20] Id.

[21] Id.

[22] Suddath, supra, note 16.

[23] Id.

[24] Id.

[25] Chao, supra, note 3.

[26] Id.

[27] Id.

[28] Id.

[29] Browne v. McCain, 611 F.Supp.2d 1062 (C.D.Cal.2009).

[30] Id.

[31] Robert Siegel, McCain, GOP Apologize To Jackson Browne, NPR (July 21, 2009, 4:00 PM), https://www.npr.org/2009/07/21/106859977/mccain-gop-apologize-to-jackson-browne [https://perma.cc/T2V2-J4EC].

[32] 611 F.Supp.2d 1062 (C.D.Cal.2009)

[33] Id. at 1069.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Chao, supra, note 3.

[40] Id.

[41] Id.

[42] Travis M. Andrews, The Rolling Stones demand Trump stop using its music at rallies, but can the band actually stop him?, The Washington Post (May 5, 2016, 5:45 AM), https://www.washingtonpost.com/news/morning-mix/wp/2016/05/05/the-rolling-stones-demand-trump-stop-using-its-music-at-rallies-but-can-the-band-actually-stop-him/ [https://perma.cc/8MN5-8YST%5D.

[43] Political Campaign Licensing FAQ, ASCAP, https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf [https://perma.cc/C5EP-E9E6].

[44] Id.

[45] Jefferson, supra, note 1.