Lately in the feeding frenzy around Rush Limbaugh calling that nice law student a whore and demanding that she tape her sexual encounters for the edification of that particular boil on the ass of humanity, there’s been several musicians who have demanded that their songs be removed from his show. And it seems like every election cycle theres bands or artists that come out to either request that certain politicians stop using their songs or disavow any connection to those politicians who are using their songs. Before the Limbaugh incident, Survivor took to “The Colbert Report” to make a stand against Newt Gingrich using “Eye of the Tiger” at a rally. I’m sure some of you have wondered how these politicians are so stupid that they don’t get the permission of the band before using those songs. Or how the band could be so stupid as to let their song be used that way and then take a stand after the fact.
No? You’ve never wondered about that? Well, that’s a shame, because that’s exactly what I plan on talking about. That’s right, you’re all in for a hot and heavy discussion of music licensing. Please try to contain yourselves until you get to the comments section.
The first thing to understand is that a piece of recorded music is recognized as two separate pieces of intellectual property; the underlying composition and the actual recording. This is because the writer of the composition and the performer are frequently not the same person as in the case of “I Will Always Love You”, written by Dolly Parton and most famously performed by Whitney Houston or “Til the World Ends” written by Lukasz Gottwald, Alexander Erik Kronlund, Max Martin and Ke$ha and performed by Britney Spears.* HOWEVER, because it’s standard industry practice for the label to retain copyright in all sound recordings the artists have basically no say in how those recordings are used, so we’ll be focusing on the rights of the composer.
The right to perform a composition (or, you know, play a recording of a composition) is called the performance right and there are three organizations in the US that handle performance rights for all songwriters; ASCAP, BMI, and SESAC. All of them offer blanket licenses covering the work of artists that they represent. Most if not all of the theaters, arenas, or other public venues likely to hold political rallies or speeches have blanket licenses which means that when a politician is speaking there he’s legally allowed to play any music that the venue’s blanket license covers. So that at least answers the question of how artists end up with their music played at the speeches or rallies of politicians they don’t agree with; the venue’s license covers all use so the politician’s organization doesn’t have to ask specifically to use that artist’s work. They do have to ask specifically to use it in a political ad or video, but since the artist might not be the composer that decision may or may not be up to them.
As far as Rush Limbaugh’s show goes, those licenses DO have to be negotiated on an individual basis because his show is syndicated and there’s a different license involved in pre-taped or syndicated radio broadcasts. However, the contracts that artists sign with their record labels (and that composers sign with record labels when they give permission for their song to be recorded) include provisions about allowing the label to send their music to radio stations to be broadcast. These provisions generally also apply to syndicated shows because there are a lot of music focused syndicated radio shows and contracts are written as broadly as possible to cover all circumstances so the label is never in a position to ask the artist to grant a right they hadn’t previously secured. Limbaugh’s show is under contract with Clear Channel, one of the largest radio and media conglomerates in the country so the idea of a label going to Clear Channel to demand their artist’s work not be played on Limbaugh’s show is laughable.
So what defense do the artists have if someone like Rush Limbaugh or Newt Gingrich uses their song? They can publicly distance themselves from the individual and request that their music no longer be used. There’s no real reason for that request to be honored other than common courtesy and we all know how likely that is. So let’s all take a quiet moment to reflect on that, as well as the idea that Rush Freakin’ Limbaugh was playing Rage Against the Machine on his show and what pure and utter batshittery that is.
*Part of the reason modern pop songs have such long writers list is that many producers insist on having partial writing credit on the songs they produce because the royalties for writers are better than straight artist royalties. But that’s a different column.
Genevieve Burgess is an under-employed, double-degreed 25 year old who knows more about music copyright, licensing, and contracts than is strictly healthy. You can find her online at her twitter account, her blog, or her brand spanking new Facebook page.