Rock stars aren’t known for their right-wing politics. So it has become a perennial political story to have musicians to complain about Republican politicians using their music. In 2008, John McCain was criticized by Heart, the Foo Fighters, and Jackson Browne for using their music on the campaign trail. Al Green complained about Mitt Romney’s use of his music in 2012.
Now it’s Donald Trump’s turn. He took the Republican National Convention stage Monday night to Queen’s "We Are the Champions." And the band wasn’t happy about it:
An unauthorised use at the Republican Convention against our wishes - Queen— Queen (@QueenWillRock) July 19, 2016
So did Trump break the law by using Queen’s music without permission? James Grimmelmann, a copyright scholar at Cornell University, tells me that legally speaking, the GOP probably did need to acquire a license before using Queen’s music. But the GOP wouldn’t necessarily need to get the license directly from Queen.
The necessary permissions are available from a performing rights organization called Broadcast Music Inc. Securing the necessary rights from organizations like BMI is a standard step in organizing any big campaign event where music is going to be played. The question is whether the famously disorganized Trump campaign actually did so.
Performing rights organizations make music licensing easy
Performing rights organizations exist to make life easier for both venues and artists. Suppose you’re planning to organize a variety show, with multiple musicians playing a wide variety of songs onstage. If you had to secure the rights to each song individually, organizing an event like this would be a nightmare. You’d have to get a list of songs in advance and then spend hours, perhaps days, on the phone negotiating for rights with dozens of musicians. The process would be so cumbersome that most organizers wouldn’t bother, which would mean less money for musicians and a bad situation for everyone.
To solve this problem, copyright holders organized themselves into broad performing rights organizations. Today, the three major PROs have licenses for the vast majority of music published in the United States. So if you run a concert venue — or, for that matter, a restaurant or bar that plays background music — you can pay a flat fee to these three organizations in exchange for the right to play basically any music you want.
Grimmelmann says that securing licenses from these organizations is a standard step for a major political campaign. Sometimes an event is held at a venue that already has the necessary licenses. In that case, the campaign doesn’t have to do anything more. For other events, the campaign can purchase licenses directly.
Queen’s "We Are the Champions" is part of the BMI catalog. And because BMI operates under close antitrust scrutiny, it’s required to license its music to all comers on a nondiscriminatory basis. That means the band doesn’t have the option of licensing its music to BMI with a "no Donald Trump" or "no Republicans" restriction. If the Republican Party paid for a BMI license, it can use any music Queen has licensed to BMI whether Queen likes it or not.
The question, then, is whether the RNC actually has a BMI license. I’ve contacted the RNC, Queen, and BMI to see if any of them can shed light on this. I’ll update if they respond.
Musicians complaints are usually just for show
Posting an angry tweet is easy and free. Filing a lawsuit is expensive and time-consuming. So the vast majority of the time, musicians’ complaints about politicians using their music don’t go anywhere. The goal of the complaint is more to send a political signal to their fans than it is to actually stop the use of their music.
But there have been a few exceptions. The most recent was last year when the guitarist for Survivor sued Mike Huckabee for using "Eye of the Tiger" at a campaign event. Huckabee eventually settled the lawsuit for $25,000 (presumably, the Huckabee campaign failed to pay the necessary licensing fees to a PRO).
And even if a PRO license gives a campaign the legal right to use a song over its creators’ objections, it’s often smarter for a candidate to just comply with the artist’s wishes. The bad press created by a famous rocker bad-mouthing the candidate might do more harm to the campaign than the song is worth.