With varying degrees of politeness, over the past few months of Trump’s presidential campaign several artists have requested that he refrain from using their songs, on the basis that this could be seen as a tacit endorsement by the artist of the candidate. The artists have taken different approaches to seeking to stop Trump using their songs: The Rolling Stones and Adele both issued statements stating that Trump did not have permission to use their songs and requesting that it cease, while Aerosmith frontman Steve Tyler sent a more formal cease-and-desist letter from his lawyer on the basis of [lack of] “permission and copyright”, stating that he was concerned that the music gave “the false impression that he is connected with or endorses Mr Trump’s presidential bid” and claiming that the band “was unaware of any public performance license granting Trump for President the right to perform ‘Dream On’ in connection with the Campaign”.
In practice, the Trump campaign has so far appeared to acquiesce to the artists’ requests. Legally, however, and in spite of these artists’ actions, candidates generally don’t need artists’ permission to play their songs, as long as the political party or the venue has a blanket licence from the performing rights organisations Ascap and BMI (in the US) which covers the music that they wish to play. Similar licences are available in the UK through PRS for Music and PPL, part of a worldwide network of music licensors. If Trump for President had such a licence, therefore, there would be no need for him to cease using Aerosmith’s “Dream On” and the other songs that artists have objected to. An exception to this is that some licence agreements do contain provisions allowing their songwriters or publishers to exclude particular songs from the blanket licence, and where this route is taken then the artist would be able to enforce their request by way of legal action.
The question might be raised as to whether this situation could be dealt with under the law of passing off, which has been used by celebrities such as Rihanna to sue for damages and injunction (or interdict) (read our article here). This can prevent someone creating the false impression that a piece of merchandise is “official”, or that a particular celebrity has endorsed a particular product or service. There are different rules and tests depending on whether merchandising or endorsement is involved. “Merchandising” covers the situation where famous images are exploited, for example when scenes from films or concerts are depicted on t-shirts, or characters made into toys. This does not generally carry the expectation that the film-makers, actors, or music artists have endorsed these images. “Endorsement”, meanwhile, is where someone with a significant reputation is seen to approve or recommend particular goods, services, or brands. In each of these cases, there might be a potential claim in passing off if purchasers would have understood that the goods were authorised by the claimant or were “official merchandising”, or if the celebrity has agreed to recommend the goods or service, but this was not in fact the case. To complete the ground of action, the celebrity must also show that this false representation has been damaging – for example, in the Rihanna case, once the judge had established goodwill and misrepresentation, he found that it would “obviously be damaging” to Rihanna’s goodwill and would have caused lost sales in her own merchandising business.
The issue for those artists who wish to prevent their music being used in political rallies is that the candidates are not actually selling a product or service (despite how much money is involved in US political campaigns). Practically, a publicised request to cease using an artist’s songs may be sufficient, as it has been in the Trump cases, to prevent this use, but enforcing this legally is likely to be difficult.