We’re Gonna Rock Down to . . . Copyright Protection: The Unauthorized Use of Popular Music in Political Campaigns During the Social Media Era
2.16.2022
To reach voters in the modern era of social media, politicians and political campaigns often use popular songs in their visual and audio campaign materials posted to Twitter, YouTube and other social media sites to convey their messages to voters, to support their campaigns and to criticize their political opponents or their opponents’ policies. However, they often fail to seek the authorization of the copyright owners of the songs before doing so. This practice “has become so pervasive, especially during election seasons, that it is not unusual for one single politician or political campaign to face multiple copyright claims from multiple copyright owners.”[1] In 2020, Guyanese-British singer Eddy Grant brought suit against former President Donald Trump for Trump’s unauthorized use of Grant’s iconic song “Electric Avenue” in a video endorsing Trump’s reelection campaign posted to Trump’s personal Twitter page.[2]
The 55-second animated video begins with a depiction of a high-speed train bearing the words “Trump Pence KAG (Keep America Great) 2020.”[3] After the red train passes, “Electric Avenue” starts to play, along with an excerpt of an unflattering speech by President Joe Biden.[4] At the same time, a slow-moving handcar, operated by an animated depiction of President Biden, comes into view bearing the words “Biden President: Your Hair Smells Terrific.”[5] The video draws a sharp contrast between Trump’s high-powered train and Biden’s slow-moving handcar and includes Biden’s unflattering language to “criticize President Biden and depict the strength of former President Trump’s campaign” and, therefore, served to endorse former President Trump and “denigrate the Democratic Party’s 2020 presidential nominee.”[6] “Electric Avenue” begins at the 15-second mark and continues until the end of the video.[7]
Grant, along with many other artists who have had their work used in the political sphere without their consent,[8] alleged that Trump not only infringed his exclusive rights as a copyright owner, but also offended his political and moral inclinations.[9] In turn, Trump, along with other politicians and political campaigns who have faced similar suits in the past,[10] argued that he had a right to use Grant’s “Electric Avenue” without consent for political purposes under the fair use doctrine and that the video itself was political speech protected by the First Amendment.[11] He brought a motion to dismiss Grant’s claims.[12]
The case – Grant v. Trump – recently went before Judge John Koeltl in the United States District Court for the Southern District of New York.[13] Judge Koeltl rejected Trump’s arguments and denied his motion to dismiss, holding that Trump’s unauthorized use of “Electric Avenue” was not protected by the fair use doctrine, and prohibiting use of the song in his political campaign videos did not infringe on Trump’s First Amendment rights.[14] Applying the four factors of the fair use doctrine, Judge Koeltl mainly focused on transformativeness.[15] He reasoned that “the creator of the video made a wholesale copy of a substantial portion of Grant’s music in order to make the animation more entertaining. The video did not parody the music or transform it in any way . . . [and its] overarching political purpose does not automatically make this use transformative.”[16] While Judge Koeltl acknowledged that there is “some inherent tension between the promotion of valuable political satire and the copyright protections of existing art that satirists may wish to use as source material,” he explained that the First Amendment cannot be used to circumvent copyright law: “[If] an artist chooses to incorporate existing copyrighted expression of other artists in ways that draw their purpose and character from that work, they must pay for that material. The same principle applies to political satirists.”[17]
Judge Koeltl’s decision sets an important precedent for courts dealing with the unauthorized use of popular, copyrighted music in political campaigns during the social media era. As more and more artists find their work beginning infringed by politicians and political campaigns online, the concern becomes not only about a violation of law but a violation of the artist’s right to free expression. In these politically divisive times,[18] it is important now more than ever to preserve creators’ rights not to have their speech used to push political views or messages that they do not support.[19] A song or artist becoming associated with a particular politician, political campaign or viewpoint can adversely affect the marketability or value of the original work, harm the integrity of the artist and impact the artist’s incentive to create in the first place. To this end, courts should follow Grant v. Trump’s guidance to protect copyright owners’ exclusive rights in cases where their songs are used without consent for political purposes and where those political uses are not otherwise “transformative.”[20] Doing so is consistent with the First Amendment and does not stifle political speech, discussion or criticism.
In those cases where copyright owners file infringement suits against politicians, campaigns or third parties for their unauthorized uses of copyrighted works, defendants often raise the fair use defense, arguing that their political uses of artists’ works are “transformative, primarily commentary, or serve other noncommercial political purposes and uses authorized under the First Amendment.”[21] Fair use is an exception in copyright law, codified in § 107 of the Copyright Act, which permits the unlicensed use of copyrighted works under certain conditions. The preamble to § 107 provides a (non-exhaustive) list of examples in which others might use copyrighted works without permission, including for “criticism, comment, news reporting, teaching, scholarship or research.”[22]
While politicians and political campaigns, just as anyone else, may use copyrighted works in ways that qualify as fair use with or without permission from the copyright owners, the fact that a politician or political campaign uses the work in a political context does not mean that the use is more or less likely to qualify as fair use. As the court explained in Galvin v. Illinois Republican Party, the “critical and political nature” of a secondary work does not automatically qualify that work as fair use.[23] Rather, fair use is a fact-specific inquiry requiring courts to make a case-by-case determination as to whether an unauthorized use is fair, considering four factors outlined in § 107.[24]
In the seminal case on fair use, Campbell v. Acuff-Rose Music, Inc., the Supreme Court explained that the first factor in a fair use inquiry examines whether “the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”[25] In other words, a court must determine “whether and to what extent the new work is transformative.”[26] While the Campbell court acknowledged that “transformative use is not absolutely necessary for a finding of fair use,” it emphasized that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works,” and therefore “the more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use.”[27] To that end, while transformativeness is not explicitly articulated in the text of § 107, it remains a key part of the fair use inquiry.
Along with the idea/expression dichotomy,[28] copyright law provides “built in protection for First Amendment interests” through the fair use defense, which serves to balance artists’ exclusive rights to their works and the public’s First Amendment interests, accommodating new works that “to some extent borrow from previous works.”[29] Cathay Y. N. Smith explains that because copyright law already “embodies First Amendment safeguards,” courts have refused to expand the fair use doctrine to create an exception to copyright law for those who use an original work in a secondary political work, for what she calls a “political” use.[30].
A Focus on Transformativeness in Political Use Cases: Grant v. Trump as Guidance for Courts
Grant v. Trump’s Transformative Analysis
In denying Trump’s motion to dismiss, Judge Koeltl relied on the first factor of fair use, which examines whether Trump’s use of Grant’s work was transformative.[31] Trump argued that the video’s use of “Electric Avenue” was transformative as a matter of law because the video and the song serve different purposes – as the animation in the video is “partisan political commentary” and “Electric Avenue” is not.[32] However, Judge Koeltl explained that Trump’s argument “misapprehends the focus of the transformative use inquiry.”[33] He explained that the inquiry does not focus “exclusively on the character of the animation,” but rather “focuses on the character of the animation’s use of Grant’s song.”[34]
He further described the character of the video’s use of “Electric Avenue” as “wholesale copying of music to accompany a political campaign ad,” noting that “the video’s creator did not edit the song’s lyrics, vocals, or instrumentals at all, and the song is immediately recognizable when it begins playing around the fifteen second mark of the video, notwithstanding President Biden’s audio, which can be heard simultaneously.”[35] He explained that Biden’s speech did nothing to obscure the song, which was “a major component of the animation, even though it appears the video’s creator could have chosen nearly any other to serve the same entertaining purpose.”[36] He additionally held that the video was not a parody under Campbell because it did not use Grant’s song to “deliver its satirical message, and makes no effort to poke fun at the song or Grant.”[37] Finally, Judge Koeltl concluded that just because Trump’s video “on the whole” constituted political messaging, that alone did not render it transformative as a matter of law.[38]
The Transformative Analysis Increases Protection for Copyright Owners in Political Use Cases
In holding that the video’s underlying political commentary did not make Trump’s use of Grant’s song transformative, Grant v. Trump set an important standard for other courts in political use cases and provides important protection for copyright owners against politicians and political campaigns who claim that their blanket copying constitutes fair use. In political use cases where courts similarly focused on transformativeness, the copyright owner’s exclusive rights were protected.[39]
The Importance of Copyright Protections in the Political Sphere
Judge Koeltl’s decision “send[s] a message that recording artists’ and songwriters’ creative output cannot be arbitrarily usurped by politicians who wish to avoid obtaining permission to use their recordings and pay appropriate licensing fees.”[40] Given the pervasiveness of infringement by politicians and political campaigns online, it becomes important now more than ever to protect copyright owners’ exclusive rights. Failing to do so can harm an artist’s marketability and reputation, can offend that artist’s moral beliefs and, notably, can disincentivize that artist to create new works in the future.
In her testimony before the United States Senate Judiciary Subcommittee on Intellectual Property, Grammy award-winning artist and Recording Academy trustee Yolanda Adams spoke about the economic impact online infringement by political campaigns has on artists – especially during the last few years throughout the COVID-19 pandemic.[41] She notes that with the closure of many venues and the cancellation of in-person performances, many artists have to rely on “multiple income streams.”[42] Specifically, she notes that when artists cannot perform, they try to make part of their living off of their recordings and digital streaming, “which only brings fractions of a penny to the creators . . . and they hope to monetize every use.”[43] Adams argues that when politicians and political campaigns use artists’ music online without permission, they “reduce the artists’ ability to earn a living,” and their actions “should be treated as infringement, plain and simple.”[44] The Copyright Alliance explains that when “politicians and political campaigns use music and other unlicensed works in ways that do not qualify as fair use, they are directly interfering with the creator’s revenue stream and the market for the work.”[45] Each time this occurs, the copyright owner goes unpaid for uses for which they otherwise would be compensated.[46]
The fourth factor of fair use examines the effect of the political campaign’s use of the song on the market for the original song.[47] In Grant v. Trump, the court noted that the video’s use of “Electric Avenue” may threaten Grant’s licensing markets and explained that “widespread, uncompensated use of Grant’s music in promotional videos—political or otherwise—would embolden would-be infringers and undermine Grant’s ability to obtain compensation in exchange for licensing his music.”[48] Additionally, some copyright owners argue that under the fourth factor of fair use, unauthorized political uses of their works “harm their market interests by damaging their reputations.”[49] For example, an artist may lose out on future commissions because fans or labels think the artist is endorsing the politician or political campaign who is using their work.[50]
Smith argues that when an artist’s work is used without permission for a political purpose, only the “political user benefits without paying the price.”[51] She notes that, in many cases, the politicians do not even need to use the copyrighted work because often “they are not using the copyrighted work to comment on the creator’s skills or their artistry, but to comment on the subject matter or politician featured in the copyrighted work, which can be achieved through non-copyrighted alternatives.”[52] Where, as in Grant v. Trump, political defendants could easily choose any other non-copyrighted song available to them to use in their commentary, courts should aim to ensure that copyright owners are protected from those defendants’ complete disregard of their exclusive rights.[53]
For Adams, fair use in political cases “is not about money.”[54] Rather, “it’s about access.”[55] She explains that fair use can be unfair if it takes her control away: “If for example, my music were used in a YouTube video that ran counter to my Christian values . . . I should have the right to take it down, regardless of the tests of fair use.”[56] Adams expresses the fear many artists have when campaigns use their music without authorization; specifically, that they might become associated with a politician, political campaign or cause that either: (1) “undermines the perceived meaning of their works”; (2) runs contrary to their own political views or beliefs; or (3) offends their moral values.[57] To this end, preserving exclusive rights becomes necessary to allow copyright owners to protect their personal interests, privacy interests or dignity interests in their works.
Finally, unauthorized uses of songs in political campaigns may disincentive artists to continue making new music. If creators are unable to stop unauthorized political uses of their works, they could be less inclined to create new works or “perhaps put less effort into making those works compelling.”[58] If politicians could use artists’ works for free, it opens the door for anyone to use a song without permission in any way they please, and there would be no reason to pay the artist.[59] As the Second Circuit explains, “this in turn, risks disincentivizing artists from producing a new work by decreasing its value – the precise evil against which copyright law is designed to guard [against].”[60]
Notably, it appears that copyright owners are not trying to enforce their exclusive rights under the Copyright Act in an effort to stifle political speech and discourse. They simply want to prevent politicians and political campaigns from using their copyrighted works and creative expressions without permission for political purposes. As copyright law already embodies two important safeguards protecting political speech in these types of cases, courts do not have to engage in a separate First Amendment analysis when analyzing these claims. Yet even if a court does, artists “can shed light on the significant distinction that exists between political speech and the music utilized in conjunction with a political campaign video.”[61] As Judge Koeltl notes, “creators of satirical videos like [Trump’s] must simply conform any use of copyrighted music with copyright law by, for example: paying for a license; obtaining the copyright owner’s permission; or ‘transforming’ the chosen song by altering it with new expression, meaning or message.”[62] Where the creator of a political campaign video does none of that, they should not be able to claim they are nonetheless entitled to the copyrighted work solely based on purported First Amendment protections.
Throughout the social media era, politicians and political campaigns have shown a blatant disregard for copyright owners’ exclusive rights, consistently using artists’ work online without permission and subsequently defending their acts on fair use and freedom of speech grounds. Importantly, political use is not synonymous with fair use. When faced with a political use case, courts should follow Grant v. Trump’s guidance and perform a close analysis examining whether the politician or political campaign’s use of the artist’s work is truly transformative. Doing so protects copyright owners’ exclusive rights to their creations and ensures that the original goals of the Copyright Act are achieved.
Diana Nelson is a third-year student at St. John’s University School of Law, currently pursuing a career in IP and entertainment law. Prior to law school, Diana developed an interest in media and entertainment law through her work at NBC and in public radio at WFUV, an NPR-affiliated radio station. During law school, she interned with the U.S. Court of Appeals for the Second Circuit, the U.S. District Court for the Eastern District of New York and the New York State Court of Appeals. This spring she is interning with Cowan, DeBaets, Abrahams & Sheppard LLP in their IP litigation group. This article appears in a forthcoming issue of the EASL Journal, the publication of the Entertainment, Arts and Sports Law Section. To learn more about the EASL Section, please visit NYSBA.ORG/EASL.
[1] See Cathay Y. N. Smith, Political Fair Use, 62 Wm. & Mary L. Rev. 2003, 2006 (2021). Professor Cathy Y. N. Smith notes that in the span of just one month, Tom Petty, Panic! At the Disco, the Rolling Stones, Neil Young, and Linkin Park all publicly denounced and demanded that former President Donald Trump cease using their music to promote his 2020 reelection campaign. Id.
[2] See Glenda Dieuveille, When is Music in Political Campaigns Transformative? SDNY Judge Rejects Trump’s Fair Use Arguments, Frankfurt Kurnit Klien + Selz P.C., Oct. 5, 2021, https://ipandmedialaw.fkks.com/post/102h7yc/when-is-music-in-political-campaigns-transformative-sdny-judge-rejects-trumps-f.
[3] See Grant v. Trump, No. 20-CV-7103 (JGK), 2021 WL 4435443, at *1 (S.D.N.Y. Sept. 28, 2021).
[4] See id.
[5] See id.
[6] See id.
[7] See id.
[8] A long list of musicians, including Jackson Browne, Don Henley and David Byrne, have taken political campaigns to court over the years for using copyrighted songs without permission. See Joel Rose, Music in Political Campaigns 101, NPR, Feb. 29, 2012, https://www.npr.org/sections/therecord/2012/02/29/147592568/music-in-political-campaigns-101.
[9] See Grant, 2021 WL 4435443, at *2.
[10] John McCain made similar arguments when he was sued by Jackson Browne for his unauthorized use of Browne’s “Running on Empty.” See Mary Ann Akers, Jackson Browne v. John McCain–Heading to Trial?, The Washington Post (Feb. 23, 2009), http://voices.washingtonpost.com/sleuth/2009/02/jackson_browne_v_john_mccain_-.html.
[11] See Grant, 2021 WL 4435443, at *1.
[12] See id.
[13] See id. at *1.
[14] See id. at *7.
[15] See id. at *8.
[16] See id.
[17] See id. at *7.
[18] See Political Polarization in the American Public, Pew Research Center, Jun. 12, 2014, https://www.pewresearch.org/politics/2014/06/12/political-polarization-in-the-american-public (finding “Republicans and Democrats are more divided along ideological lines–and partisan antipathy is deeper and more extensive–than at any point in the last two decades”).
[19] See Is It Considered Fair Use for a Political Campaign to Use Music or Other Copyrighted Works?, Copyright Alliance (2021), https://copyrightalliance.org/education/qa-headlines/music-in-political-campaigns-fair-use.
[20] See Grant, 2021 WL 4435443, at *4.
[21] See Smith, supra note 5, at 2039.
[22] See 17 U.S.C. § 107.
[23] See Galvin v. Illinois Republican Party, 130 F. Supp. 3d 1187, 1193 (N.D. Ill. 2015).
[24] The court considers: (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.” 17 U.S.C. § 107.
[25] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Campbell specifically addressed the role of fair use with respect to parodies, which are often used in political campaigns to criticize or comment on a political opponent. Id. at 586. Campbell explained that parodies “need to mimic an [original work]” to make a point and provide “social benefit by shedding light on an earlier work, and, in the process, creating a new one,” and therefore “have an obvious claim to transformative value.” Id. at 579.
[26] See id.
[27] See id.
[28] In Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985), the Supreme Court noted that copyright’s idea/expression dichotomy “strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts, while still protecting an artist’s expression.”
[29] See David L. Hudson Jr., Copyright & The First Amendment, Freedom Forum Institute, Aug. 5, 2004, https://www.freedomforuminstitute.org/2004/08/05/copyright-the-first-amendment.
[30] See Smith, supra note 5, at 2011; see also Harper & Row Publishers, Inc., 471 U.S. at 560.
[31] See id.
[32] Id. at *3.
[33] Id.
[34] Id.
[35] Id. at *4.
[36] Id.
[37] Id.
[38] Id.
[39] See Henley v. DeVore, 733 F. Supp. 2d 1144, 1148 (C.D. Cal. 2010); see also Hill v. Pub. Advoc. of the United States, 35 F. Supp. 3d 1347, 1352 (D. Colo. 2014).
[40] See id.
[41] See Recording Academy, Testimony of Yolonda Adams, How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use? (Jul. 28, 2020), https://www.judiciary.senate.gov/imo/media/doc/Adams%20Testimony1.pdf.
[42] See id.
[43] See id.
[44] See id.
[45] See Is It Considered Fair Use for a Political Campaign to Use Music or Other Copyrighted Works?, Copyright Alliance (2021), https://copyrightalliance.org/education/qa-headlines/music-in-political-campaigns-fair-use.
[46] See id.
[47] See Grant, 2021 WL 4435443, at *4.
[48] Id. at *7.
[49] Smith, supra note 5, at 2059.
[50] See id.
[51] See id. at 2048.
[52] See id.
[53] See Grant, 2021 WL 4435443, at *4.
[54] Recording Academy, supra note 41, at 2.
[55] See id. at 3.
[56] See id.
[57] See Smith, supra note 5, at 2071. For example, in June 2020, Tom Petty’s family objected to Trump’s use of Petty’s “I Won’t Back Down” at his rally in Oklahoma. See Christianna Silva, Tom Petty’s Family Doesn’t Want Trump Using His Music for a ‘Campaign of Hate’, NPR, Jun. 21, 2020, https://www.npr.org/2020/06/21/881444533/tom-pettys-family-doesn-t-want-trump-using-his-music-for-a-campaign-of-hate. Petty’s Instagram account issued a statement following a cease-and-desist letter to the Trump campaign, saying: “Both the late Tom Petty and his family firmly stand against racism and discrimination of any kind. Tom Petty would never want a song of his used for a campaign of hate. He liked to bring people together.” Id.
[58] Id. at 2067.
[59] See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 114 (2d Cir. 2021).
[60] Id.
[61] Taylor L. Condit, The Need for Songwriters’ Control: A Proposal to Prevent Unwanted Uses of Musical Compositions at Political Rallies, 47 Sw. L. Rev. 207, 211 (2017).
[62] Grant, 2021 WL 4435443, at *7.
