Politicians don’t always need musician approval to use songs in ads, but they need to buy the license

Midterm election season is in full force, which means political advertisements are swamping television airwaves across the country.

One VERIFY viewer wondered what candidates have to do to use popular music in those ads.

Teresa wrote via email, “Are political ads required to obtain permission from musical artists to include their music?”

THE QUESTION

Do political candidates need permission from musicians to use their songs in campaign ads?

THE SOURCES

• American Society of Composers, Authors and Publishers (ASCAP)
• Daniel Schacht, music law attorney and partner at Donahue Fitzgerald

THE ANSWER

Candidates need to obtain licenses to use songs in campaign ads. Those rights are often owned by the artists, but not always.

WHAT WE FOUND

In the United States, music is protected by copyright, which means anyone who wishes to use a song must obtain a license. The type of license varies depending on how the song is being used.

To add music to your political ad – or any other video – you must obtain what’s called a “sync license.”

“You're synchronizing the audio, the composition, with the video. So that's a sync license,” said music attorney Daniel Schacht. “And typically, artists have the right to approve… a sync license.”

And just like the Grammys have separate awards for the songwriting process and the performance piece of that song, there are separate licenses for the composition and the master recording. Artists will often own the rights to one or both of those licenses, depending on their involvement in the process and their deals with their label.

“There's the copyright to the recording itself. Whoever performed the recording, or the record label, will own that specific recording,” said Schacht. “And then whoever wrote the music, there's... composition copyright. So the songwriters will typically own that. And that's handled by a publishing company.”

To get those licenses, campaigns need to reach out to their rights holders; there’s no blanket license available that permits a whole catalog of songs to be used for TV spots.

“The campaign will need to contact the song’s publisher and possibly the artist’s record label to negotiate the appropriate licenses with them,” reads an informational pamphlet from the American Society of Composers, Authors and Publishers.

If the performing artist doesn’t own the rights to their music, there still may be a way for them to sue candidates who use their music against their wishes, though it’s less ironclad than a copyright claim.

“What comes up in these cases, too – which is often a harder claim for somebody to make – will be a false endorsement,” said Schacht. “Maybe as an artist, you don't control your rights anymore, and you don't like being associated with that [candidate]. If you can show that people in the public think that you're endorsing the candidate, then you could have a claim.”

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Licensing music at campaign rallies 

False endorsement claims come up more often when candidates use music at campaign rallies. In those situations, unlike with produced ads, candidates don’t need to purchase individual licenses from artists, songwriters, labels, or publishers.

“Just like any venue, be it a bar or a stadium, or nowadays websites, [campaign] venues can obtain public performance licenses through ASCAP or BMI (Broadcast Music, Inc.), and that's a blanket license,” said Schacht. “[It] covers entire catalogs. Probably hundreds of thousands of songs, if not more.”

Venue licenses, however, often specifically exclude third-party events such as campaign rallies, so ASCAP also sells campaign-specific licenses so candidates can be sure they’re in the clear to play songs from the catalog anywhere they go.

“This license is issued to an individual candidate’s specific campaign and extends only until the candidate is sworn into office — not for the candidate’s full term in office. Having such licenses in place would guarantee that, no matter where you have a campaign stop, the performances of music at the events would be in compliance with copyright law,” read ASCAP’s pamphlet.

Still, artists who dislike or disagree with certain candidates have commonly objected to those candidates’ use of their songs at rallies. Their legal remedies in such cases are fairly limited if the candidate has purchased the proper license, and few artists go further than publicly stating their objections.

Artists can work with the licensing agencies to get their music out of the catalog, though that would naturally mean less money for the artist.

“The ASCAP Political Campaign License agreement provides a blanket license to perform any or all of the millions of compositions in the ASCAP repertory. However, ASCAP members may ask ASCAP to exclude specific songs from a particular political campaign’s license,” reads the ASCAP pamphlet. “In that event, ASCAP will notify the campaign of the excluded works.”

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