Political Rally Soundtracks: How Campaigns Can, and Cannot, Use Music

Many memorable events are punctuated by music. The power of a strong walkout song to set the tone or an outro that resonates with your audience is undeniable. But what happens when a politician, especially one that you may not agree with, plays your music at a campaign event? If you are a megastar like Beyoncé with the support of a major record label and publishing company behind you, your label and publisher may be contractually obligated to step in and prevent further use, as was the case with her anthemic recording Freedom. In 2024 alone, legendary recording artists such as ABBA (through their label Universal), Celine Dion (through SONY Canada), Foo Fighters, Earth, Wind & Fire, and more joined the growing ranks of artists that have objected to political uses of their works. During the 2016 and 2020 election cycles, a myriad artists including Bruce Springsteen, Aerosmith, Prince‘s estate, and The Animals also publicly objected to political uses of their works, with varying levels of success. Generally speaking, today’s political machines often, but not always, respect artists’ wishes to cease the continued use of a particular song or body of work once the artist has made a demand. That said, is there anything that a regular artist, one without superstar clout, can do to prevent politicians from using their music at their rallies? 

The answer, of course, is “it depends.” In the case of pre-recorded political commercials, the producer must always seek a synchronization license for use of the song’s underlying composition from its rightsholder, generally a publishing company, and a master use license from the owner of the copyright in the recording, often a record label. However, in the United States, a politician does not have to seek an artist’s permission prior to using their songs at live, public events, provided they have taken the proper steps in preparation for the event. Namely, the politician must first seek a special license from one or more performing rights organizations (PRO). While there are many, the two preeminent PROs in the United States are the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). When an artist publishes music (or a publisher does so on their behalf), the artist must register with either ASCAP, BMI, or another PRO so that they may collect royalties earned by public performances of their work. ASCAP and BMI issue “blanket licenses” to all sorts of public venues, ranging from corner bars to massive stadiums. The blanket license allows the venue to publicly play the millions of recordings in that PRO’s catalogue. The venue then pays the PRO a preset rate, and the PRO pays the royalty to the copyright holder.

However, a venue’s typical blanket license with a PRO does not allow for performances at political events. Special PRO licenses for use at live political events must be secured prior to setting out on the campaign trail. Fundamentally, it makes sense that the campaign itself should be the one footing the bill for their event’s music, as a political rally necessarily benefits the candidate, not the venue. These special political event licenses, much like their regular blanket license kin, allow the politician to publicly perform any song in the PRO’s catalogue.

There is however one crater-sized carve out to the PROs’ political event licenses. Each license contains a clause that states that if a copyright holder notifies the PRO that they do not want a specific campaign to use their music, the PRO will inform the campaign that the artist’s work has been excluded from the political event license. In practice, this could be a songwriter notifying their publishing company that they object to the usage, the publisher company agreeing to lend their support, and the publisher contacting the PRO directly. After the campaign receives this notice, any future uses of the excluded songs at public events give rise to claims for copyright infringement.

Importantly, not all artists have the option to demand that PROs exclude their works from the PRO’s political blanket license. This is a negotiated right. When the typical songwriter signs a deal with a publishing company, it is unlikely they will be able to negotiate that their songs are not used in political or so-called “special interest” campaigns. Accordingly, in most cases, it is up to the publishing company itself to allow an artist’s songs to be used in a political campaign or not. Even if the songwriter has an issue with political uses of their songs, without the publisher’s support the songwriter is left with no immediate recourse from the PROs. In the case of an indie artist without this negotiated right, the artist’s only recourse may be to bring a potentially costly Lanham Act claim for false endorsement or state law right of publicity claims to prevent future uses of their works.

One recent case involving Donald Trump serves as a comprehensive illustration of these principles. In early September, U.S. District Court Northern District of Georgia’s Hon. Thomas W. Thrash, Jr. granted a preliminary injunction against Donald Trump and Trump campaign entities enjoining them from continuing to play Isaac Hayes’ Hold On, I’m Comin’ at Trump’s presidential campaign rallies. This comes after a busy summer for the estate of the late songwriter and Isaac Hayes Enterprises, LLC. In June, the Hayes estate and Hayes’ co-writer David Porter, through publisher Universal Music Publishing Group, notified the Trump campaign that “Mr. Porter’s Work entitled Hold On I’m Coming is excluded from the . . . BMI Music License for Political Entities or Organizations between BMI and Donald J. Trump for President 2024, Inc. . . . effective immediately.” BMI further admonished that “any performance of the Work by [the campaign] from this date forward [is] unlicensed and a material breach of the Agreement.”

The Trump campaign continued to use the song, despite BMI’s warning. In August, Hayes’ estate filed suit against Donald Trump individually, Donald J. Trump for President, Inc., the Republican National Committee, and more potentially related non-Trump entities. Isaac Hayes Enter’s LLC v. Trump et. al, Case No. 1:24-cv-03639-TWT (N.D. Ga). Hayes’ core claims are: (1) neither Trump’s campaign or Trump the individual had the right to publicly perform the song based on their earlier letter; and (2) Trump himself posted a video from a rally wherein the song is played, and the video remained live on his Truth Social account. Even if Hayes’ work were included in Trump’s blanket political license, which it was not, this later video constitutes a second infringement, as a PRO’s blanket license does not grant audiovisual synchronization or master use rights.

In a remarkably fast and decisive turn, Judge Thrash issued a preliminary injunction against the Trump parties, indicating that Hayes’ estate is likely to succeed on the merits of its claims. This is because in the Eleventh Circuit, a preliminary injunction may only be granted where the moving party can show that: (1) it has a substantial likelihood of success on the merits; (2) it will suffer irreparable injury unless an injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction would not be adverse to the public interest. See Otto v. City of Boca Raton, 981 F.3d 854, 860 (11th Cir. 2020) (internal quotations omitted).

While Trump has not been ordered to take down the videos containing the song at this early stage in the litigation, the campaign has been ordered to refrain from all future uses of Hold On, I’m Comin’. The preliminary injunction signals that the Trump campaign will face the consequences for failing to abide the terms of its BMI license and serves as a cautionary tale for American political campaigns on both sides of the aisle.

At the end of the day, the court’s decisive thrashing leaves no room for doubt. Once a politician plans to play a song at a public event, their campaign must ensure that it has a valid political license with the songwriter’s PRO or risk facing legal action.