The Idolawyer Weighs Musicians’ Right To Protest The Use Of Their Songs By Politicians

There are two weeks left to go in the Presidential campaign, and that means one thing: More time for musicians to get annoyed when a politician whose views don’t jibe with theirs to get annoyed about what they see as “misuse” of their songs! In anticipation of this happening at least three more times before Nov. 4, we asked our official house counsel, John P. Strohm, for his legally considered opinion on the subject. After the jump, he talks about the nitty-gritty of song licenses, and whether Dave Grohl should have even bothered coming out of retirement to complain about John McCain’s use of the Foo Fighters’ “My Hero.”

I’ve been keeping up with this issue since the convention, and one consideration is what is covered under the blanket licenses with the performing rights organizations (“PROs”) such as BMI, ASCAP and SESAC. Most songs that are commercially available are within the library of one of the PROs. Generally, businesses such as venues (and, as I understand it, the McCain campaign) maintain “blanket licenses” with these organizations, so for a fee they have the right to play most songs publicly at events they hold.

Then there are synchronization or “synch” licenses, which permit broadcasters such as T.V. networks to sync their programming to a specific song. But in the case of, say, the convention, a television network probably doesn’t have to get a sync license if the songs that are being played are incidental to a news broadcast. The campaign probably doesn’t have to come out and get a license for its use.

But if the campaign was planning on using a specific song such as in an ad, then, yes, a master use license for the recording and sync license would be required. The master license is usually acquired through the record company, and the song license through the publisher and the writer. Since it must clear both sides, the McCain campaign can’t use a cover of “My Hero” done by, say, Alter Bridge. That takes care of the master side but not the synch.

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!