Regardless of your political leanings, you’ve probably heard this week that a number of prominent bands were unhappy to find out their music had been used without their permission at the Republican National Convention. However much these artists may not like having their famous tunes used for political purposes, they may not be able to do much about it.
The first high-profile group to sound off about their music being used at the RNC was The Turtles. After the band’s classic 1967 tune “Happy Together” was used on the first day of the convention, Turtles co-founder Howard Kaylan expressed his displeasure and referenced potential legal action:
However, as Kaylan quickly learned, there was no case to be made in this instance. The version played at the RNC was not the Turtles version, but a cover of the tune played by a live band. Because neither Kaylan nor his Turtles bandmate Mark Volman wrote “Happy Together,” they have no say in whether or not other bands can play the song; they can only chime in when it involves uses of their recordings of the song.
Kaylan subsequently acknowledged this fact:
Yet even if Kaylan were the songwriter, the RNC’s response to another upset artist seems to indicate that he would have had difficulty with a lawsuit.
Just like the Turtles, the members of Queen were upset to learn that their song “We Are The Champions” had been used during the convention.
Again, the song was played by a cover band, but the band did write the song and Queen’s publisher, Sony/ATV Music Publishing told the L.A. Times that the Trump campaign never sought permission to use the song. In fact, noted Sony/ATV, the band had made previous requests with the campaign to cease playing the song at his events.
In response, the RNC countered that its use was covered by blanket performing rights licensing agreements it had made with organizations like ASCAP and BMI. Basically, as long as the songwriters get paid for their songs being used, there’s not much they can do about the RNC hiring a band to play the tunes.
It’s worth noting that the Sony/ATV reply to the RNC’s explanation was to restate its claim that no permission was given and repeat the request for the Trump campaign to stop using Queen’s music, but there is no threat, or even hint, of legal action if that request is not met.
The final day of the convention brought more angry responses to the RNC’s music choices. The O’Jays were not happy to hear about their joyous 1973 hit “Love Train” being played at the convention. But once again this is a song that was not written by the group’s members, but by the legendary songwriting team of Kenneth Gamble and Leon Huff.
As the convention drew to a close, it managed to raise the ire of the estate of late Beatles singer/guitarist George Harrison by using his “Here Comes the Sun”:
If indeed the RNC does have proper performance licenses in place to cover all the songs it played this week, it could be very difficult for anyone to sue. One lawyer we spoke with said an artist could try to make a claim that using a high-profile song — one that is immediately identifiable with a specific band or singer — for very specific political purposes is tantamount to using that song in a campaign ad, but even then the artist would probably at best hope for an out-of-court settlement.
Which is another issue involving these sorts of disputes. A number of artists have sued politicians over the years, including Jackson Browne and David Byrne. More recently, former candidate Mike Huckabee was sued for using Survivor’s “Eye of the Tiger” at a political rally without permission. However, as the L.A. Times notes, such lawsuits either get thrown out or quietly settled, meaning there is no real binding precedent for courts and litigators to look at when trying to decide whether or not to file suit.
So until a case over a politician’s unauthorized use makes it to the level of a federal appeals court, this particular question will remain largely unanswered.