PAIGE COMPARATO—In mid-October, Steven Tyler of Aerosmith sent a cease-and-desist letter to Republican Presidential Candidate Donald Trump asking him to stop playing the band’s song “Dream On” at campaign events. The letter stated that the candidate did not have permission to use the song, and “it gives the false impression that [Tyler] is connected with or endorses Mr. Trump’s presidential bid.” If this story sounds familiar, that is because Tyler is the most recent in a long line of artists who have claimed copyright protection to oppose politicians’ use of their songs. Almost foreshadowing this would happen again, in June, Rolling Stone put together a list of thirty-four artists “who fought politicians over their music.” If this practice is so frequently opposed, how is it legal? Is it about the money or is it about protecting artists’ identities?
Under §106 of the Copyright Act, owners of copyright in a musical work are given the “exclusive” rights to reproduce the copyrighted work, prepare derivatives, distribute copies, display the copyrighted work publicly, and, “in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” However, §114(a) of the Act specifies that there is no exclusive right to public performance of sound recordings. Therefore, to perform (or play) a sound recording publicly, the licensee must pay “the owner of the copyright in the underlying composition.”
A person seeking to license a composition to play a song publicly should purchase a license from one of the “performing rights organizations” (“PROs”) in the United States, such as the American Society of Composers, Authors, and Publishers (“ASCAP”). However, the type of public playing makes a difference. If the performance can be tracked by being played over the radio or, in this instance, being used in a campaign commercial, the PROs collect royalties on actual performances. If the performances are live in public venues, restaurants, or at campaign rallies, PROs can issue a “blanket license” to the locations and allocate revenue among songs likely to be performed there. Most convention centers and venues that typically host events would likely have such a license. Thus, if Trump were playing “Dream On” at such a venue with a blanket license, then there would be no technical copyright violation. However, smaller venues and other various areas often used for campaign rallies might not have such licenses, and there a violation of copyright law could be found.
In our media age, the distinction between live public performances and those that can be tracked seems to be a blurred line. Live performances can still be “tracked” by being broadcast live, and replayed over and over on YouTube, the nightly news, Saturday Night Live, personal DVRs, etc. This is especially true in the context of political campaigns, where watching Donald Trump walk out to “Dream On” was replayed many times. It is clear how this distinction can disadvantage artists economically. If they are only being paid according to the blanket license obtained by a venue, they are receiving less than they would if they were collecting royalties on actual performance in “tracked” performances. Steven Tyler published an opinion in the Huffington Post urging for change to copyright law so artists can get paid fairly when politicians use their music. However, it is not just about the money. The underlying philosophies of copyright law tell us that other reasoning should still be respected.
Do artists deserve moral rights in their works and the right to refuse permission to politicians to use their songs simply because they don’t want them to? The personhood theory of intellectual property suggests yes: personhood theory views creative works as an extension of the creator’s personality; expression of a person’s individualism and freedom; and embodiment of the artist’s message. Viewing copyright in this manner, one can understand why artists might not want their songs affiliated with politicians or campaigns that they do not believe in, or if they feel the use misrepresents their own views. For example, Neil Young opposed Donald Trump using his song “Rockin’ in the Free World,” and stated on his Facebook page: “Music is a universal language, so I am glad that so many people with varying beliefs get enjoyment from my music, even if they don’t share my beliefs. But had I been asked to allow my music to be used for a candidate – I would have said no.” We should support artists’ opposition to their songs being used in campaigns because it essentially reaches back to their personhood, and this underlying philosophy of copyright should be respected.
On the other hand, we would be foolish to ignore the political pettiness that could result from allowing such an obstruction to the legal use of songs, and the consequences of such a policy. In addition, not every song has such a meaning to artists’ personhood, and some artists do not even write their own songs. However, the power of using songs in political campaigns must be realized and it should lead to some change in copyright law. Steven Tyler said in the Huffington Post, “any time artists and songwriters lose the right over how their music is used, it is devastating to them.” So one has to wonder if copyright will ever change to reflect this idea, but until then “dream until your dream comes true.”
