The Political Licensing of Music

(a little flickr-driven snark courtesy of Mike Licht, NotionsCapital.com)

As I wrote about a couple weeks back, the McCain campaign is having a devil of a time playing an artist’s song without the artist blasting McCain for doing so. Since I wrote the above, Bon Jovi has joined the fracas protesting the use of “Who Says You Can’t Go Home,” at rallies and events. I’m just sad they aren’t using “Livin’ On A Prayer.”

Bad jokes aside, Idolator ran a quick but effective story today summing up the case (much clearer than I did, I’m humbled to admit). Basically, as we said, if the McCain Campaign did secure the blanket licenses from the performance rights organizations, they most likely did not violate copyright law when they played these songs at public events. They claim they did, so I suspect these uses were legal (however tactically ill-founded playing songs which generate more negative vibes for you might be). The case of using Jackson Browne in an advertisement is quite different, and the campaign likely will lose on that claim and owe Browne some damages.

But Idolator’s John Strohm takes it a step further, and it’s an interesting consideration:

The X Factor here is this: When the song is used in a political campaign, it’s different from a typical performance at something like a sporting event: it smells like an actual endorsement, which would require additional licensing. There may be an argument on the part of the rightsholder that this particular use requires a license beyond the blanket license because of its political overtones.

Should BMI, ASCAP, or SESAC address limitations within their agreements? Should it have a clause about whether or not the rightsholders of these songs are offended by particular uses? If you’re a major political campaign like the McCain campaign, and your choices are go and negotiate a license for a song or just use it and get sued later, maybe the best approach is just to use it and risk it. The McCain campaign’s going to have trouble clearing anything!

There’s a lot to chew off in this statement, and once again work keeps me from giving this thought pattern its due, but it’s certainly worth considering. From my perspective, any de facto endorsement issues the artist may raise over this will probably be nullified after looking at their contract with ASCAP/BMI/SESAC and the PRO’s contract with McCain. As is often the case, they most likely waived most or all of their rights. I don’t think the policy argument of “smelling” like an endrosement would render that contract voidable.

Anyone who has a copy of the standard PRO release handy and want to pass it along? B-Money, perhaps? Reading that would clear this up a little bit.

Now, the PROs clearly have an interest in not making thier already-complicated licensing process more complicated, but could this be an area where one of the PROs could distinguish itself from the others? I know this oligopoly (near duopoly, really) makes it really hard to vary their services greatly for the increase in price, but if one of them were to say to artists, “affiliate with me and you can control where your music is played to avoid this McCain situation,” they’d probably get a lot of good signups and crossovers. Anyone heard of them doing this?

And it tickles me to think of a world where the campaign that does not align itself well with musicians would feel the wrath of not having any music to play at rallies. We’re all fairly upset at how commoditized music has become, and this is a good strike back at it.