Rami S. Yanni
Partner Raines Feldman Littrell LLP
Rami Yanni is an attorney with over 30 years of experience advising media, entertainment, multinational and emerging growth companies, as well as individuals. His expertise includes intellectual property and entertainment transactions, licensing, acquisitions, portfolio management, and anti-piracy matters. Throughout his career, he has negotiated hundreds of agreements across various industries, representing major motion picture studios and television networks on copyright and trademark matters. Rami is also adjunct faculty teaching intellectual property at USC Gould School of Law.
Sami Kazi
Associate Raines Feldman Littrell LLP
Sami Kazi is an entertainment and intellectual property attorney specializing in representing recording artists, songwriters, producers, and industry professionals. His practice encompasses music, trademark and copyright matters, with a focus on both traditional media and emerging markets including anime and digital entertainment.
As the 2024 campaign season reaches its final throes, politicians are yet again finding themselves in an unexpected battle - this time not over policy positions or polling numbers, but over their music playlists. Thanks, in part, to the hyper-socialization of media in the modern era, politicians are increasing their reach to voters by way of popular songs in their audiovisual campaign materials, often posted to X (f/k/a Twitter), Instagram and other social media sites. Whether it's a message to voters, criticism of their opponents, or a soundtrack to energize their rallies, you'll likely hear chart-topping hits doing more campaigning than the policies themselves - whether artists like it or not. As musicians increasingly push back against unauthorized use of their works, new and sometimes not-so-new legal challenges are reshaping our understanding of copyright law in the political arena.
The chorus of complaints
Music and politics have always been an explosive mix, but today's artists aren't just complaining--they're taking politicians to court. Decades ago, John Mellencamp challenged Ronald Reagan's use of his song Pink Houses during Reagan's 1984 presidential campaign. ABBA followed suit in 2008, slapping John McCain with a cease and desist over the song Take a Chance on Me. But recent years have seen musicians strike even harder. The Isaac Hayes estate didn't waste any time and on, Sept. 3, 2024, secured a preliminary injunction blocking the Trump campaign from using Hold On, I'm Coming Home. And when the Trump campaign turned Eddy Grant's 1980s hit Electric Avenue into a 13-million-view viral sensation, Grant took them to court and emerged victorious.
Grant v. Trump: an analysis of fair use in political campaigns
As a refresher, Grant successfully sued Trump for copyright infringement stemming from Trump's prominent use of Electric Avenue in a 55-second animated video, which featured a fast-moving red train depicting Trump's campaign slogan, to promote his 2020 presidential campaign. The Trump campaign argued, among other things, that its use of the song was fair use under the U.S. Copyright Act. The Southern District of New York's 2024 decision in Grant v. Trump is critical for understanding how political campaigns may be held liable for unauthorized music use. In conducting its analysis, the court looked at the four fair use factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Purpose and character of use
In evaluating the first fair use factor, Grant v. Trump focused on the extent of transformation and the purpose of use. The court underscored that transformation is a critical element in any fair use analysis, asking whether the secondary work "adds something new, with a further purpose or different character" or merely repurposes the original. Here, the court found that the campaign video featuring Electric Avenue had "a very low degree of 'transformativeness,' if any at all," citing the unaltered use of the song as a wholesale copying of Grant's original work. The court noted that Electric Avenue played continuously for most of the video, unedited in lyrics, vocals, or instrumentals. Without any modification, it served no transformative purpose in the video's political message and "play[ed] no discernible role in communicating the video's overarching political commentary." The court found that the campaign's use did not attempt to comment on, critique, or parody the song itself - key elements often necessary for a fair use defense to succeed under the first factor - concluding that the first factor disfavored fair use.
Nature of the copyrighted work
The second factor, which looks at the nature of the copyrighted work, also weighed against fair use. Both parties agreed that Electric Avenue is a "creative, expressive work" that embodies the unique musical and lyrical artistry of Grant. As the court pointed out, creative works are "closer to the core of intended copyright protection" than factual or informational works. Although this factor is often less pivotal in fair use cases, the court noted it further weakened the defendant's position, aligning with case precedent that limits fair use defenses involving creative works like music, especially when the use is not transformative.
Amount and substantiality of the portion used
The third factor analyzes both the amount and substantiality of the portion used, assessing not only the quantity but also the qualitative value of the alleged infringement. The court found that Electric Avenue "played for over two-thirds of the video's duration," which, coupled with the lack of alteration, made the song "immediately recognizable." The court emphasized that Electric Avenue was not just a minor or incidental part of the campaign's messaging; rather, it was central to the video's overall impact and purpose, indicating the choice of song was intentional and prominent.
This factor also assesses whether the amount used aligns with the possible transformative purpose of the use, if any. Not only did the campaign fail to justify why Electric Avenue was specifically necessary for the video's message, the court stressed that the campaign "offered no justification for their extensive borrowing." The court reasoned that the use was not only extensive but also gratuitous, further diminishing any fair use defense.
Effect of the use on the potential market
The fourth fair use factor assesses the impact of the unauthorized use on the potential market, including both the current and potential licensing markets for the copyrighted work. Here, the court found that the unauthorized use in the campaign video posed significant risks to Grant's licensing interests. It observed that "uncompensated use[s] of Grant's music in promotional videos-political or otherwise" could harm future licensing opportunities by setting a precedent for others. The court reasoned that widespread, uncompensated use would impact the potential market for the copyrighted work by "embolden[ing] would-be infringers" to make use of copyrighted works without a license.
While Trump's campaign argued that Grant had not previously licensed the song for political purposes, thereby implying that he had no interest in doing so in the future, the court rejected this line of reasoning. It reasoned that denying Grant the right to control the "potential market" for his music - even if certain uses or market opportunities had not yet materialized - would unduly narrow the scope of his copyright protections and threaten the integrity of his licensing rights.
The Grant decision concluded that the fair use factors collectively weighed against a finding of fair use, ruling that the campaign's use of the song was copyright infringement. This case helps to illustrate that, even in politically charged situations, making transformative use of a copyrighted work can tilt the balance in favor of a fair use defense, particularly when the use serves commercial interests.
Beyond fair use: performing rights organizations and opt-outs
Beyond fair use considerations, political campaigns face additional restrictions when it comes to using copyrighted music at events. Performing rights organizations (PROs) like ASCAP, BMI, and SESAC issue public performance licenses that generally allow businesses and venues to play music legally. However, while many campaign events are held at venues already licensed by PROs, these licenses often do not extend to political events. As ASCAP explains, a venue's license "typically excludes music used during conventions, expositions and political campaign events" since the campaign, not the venue, is the primary beneficiary of the music's use. Accordingly, in most cases, political campaigns must obtain a separate PRO license that specifically covers campaign events.
To manage music used across multiple campaign events, political campaigns should secure campaign-specific blanket licenses directly from the relevant PROs. This approach not only enables campaigns to incorporate licensed music, but ensures consistent legal coverage, regardless of the event venue. Note, however, that a campaign-specific license isn't a true "blanket license." Even when a campaign obtains a PRO license, artists typically reserve the right to prevent the use of their music in connection with political campaigns, e.g., with campaigns they do not support. For instance, ASCAP permits its members to exclude specific music from a particular political campaign's license, effectively blocking the campaign from using those works. This opt-out feature is an important tool for artists, allowing them to avoid unwanted associations and maintain control over the public use of their works.
Additional legal considerations for campaign music use
Even with the correct PRO licenses, campaigns should remain cautious of potential legal challenges arising from their use of third-party music. Musicians concerned about their music being associated with a particular campaign may invoke state-based publicity rights, which serve to prevent the unauthorized use of their persona (name, voice, image and likeness), including use for political endorsements. Furthermore, under the Lanham Act (the federal trademark act), artists can assert claims for false endorsement if the use of their music is likely to cause confusion, or to cause mistake, or to deceive as to their affiliation, connection, or association with a particular candidate or party. This risk is particularly heightened when a campaign uses a song so prominently or frequently that it becomes identified with the campaign. To mitigate these risks, campaigns should seek direct licenses from artists or their representatives, especially for prominent or recurring uses of particular songs.
Conclusion
The Grant v. Trump case helps illustrate the limitations of copyright fair use in political campaigns, especially when the use of a copyrighted work is not transformative and is being made for potential commercial benefit. This ruling, along with the specific licensing requirements of PROs, underscores the need for political candidates and campaigns to approach music use more thoughtfully. Campaigns should not only secure proper public performance licenses but also consider the specific exclusions for political uses in PRO venue agreements. Additionally, artists' rights to opt out of political campaign licenses offer a proactive way for creators to control how their work is used in public spheres, balancing legal compliance with respect for artistic integrity. Political campaigns, regardless of their reach or intent, must recognize that copyrighted music is a protected asset that cannot be used without permission. Obtaining proper copyright licenses allows campaigns to avoid legal liability while respecting the creators whose works amplify their message.