DON’T GET CAUGHT ROCKING WITHOUT PERMISSION! NAVIGATING THE FINE LINE BETWEEN FAIR USE IN COMMERCIAL MUSIC

Author: Jacob Davis, Associate Editor

INTRODUCTION

The use of music in political campaigns has long been a powerful tool to evoke emotion, galvanize audiences, and craft a candidate’s public image. However, when music is used without the artist’s consent, it creates a contentious intersection of copyright law, artistic control, and political expression. This ongoing tension highlights a broader debate: where does the line fall between fair use and the need for proper licensing, particularly in the context of commercial music used in highly publicized settings? The Trump presidential campaign’s repeated reliance on music from unwilling artists offers a prominent case study for exploring this delicate boundary, underscoring the challenges in navigating the legal and ethical obligations tied to music licensing in the public and political sphere.

A striking example of this issue recently unfolded when the 2024 Trump campaign played Foo Fighters’ iconic anthem “My Hero” at a rally in Arizona, where Robert F. Kennedy Jr. formally endorsed Trump.[1] The Foo Fighters swiftly denounced the use, emphasizing that no permission had been sought nor granted.[2] Furthermore, they pledged to donate any royalties generated from the unauthorized use to the Harris/Walz campaign, signaling their clear opposition.[3] This incident is part of a broader pattern in which Trump’s campaign has repeatedly employed music from artists like Beyoncé, Celine Dion, and Isaac Hayes without securing proper consent, prompting public rebukes, cease-and-desist letters, and even lawsuits.[4]

At the center of this controversy lies the tension between fair use—intended to allow limited and transformative use of copyrighted works without permission—and the stringent licensing requirements that govern commercial music. Political campaigns often rely on blanket performance licenses obtained by event venues to justify playing music publicly.[5] Yet legal scholars argue that this reliance often disregards the broader implications of such use, particularly when it implies false endorsement or misrepresents the artist’s values.[6] In lawsuits like the Estate of Isaac Hayes’ against the Trump campaign, the legal question expands beyond mere licensing violations to include issues of reputational harm and the artist’s right to control the context in which their work is presented.[7]

This debate also raises critical questions about the role of music as both a commercial product and a vehicle of cultural expression. For political campaigns, music is a potent symbol, shaping narratives and connecting with audiences on an emotional level. For artists, however, music is an extension of their identity, values, and creative vision—elements they are often unwilling to see co-opted by opposing political agendas. In the end, this debate seeks to illuminate the broader implications of these disputes and advocate for a more equitable balance between the rights of artists and the freedoms of political expression.

MUSIC LICENSING & EXEMPTIONS

Music licensing provides the legal framework by which rights holders grant permission for their works to be used in specific contexts.[8] A license functions as a contractual agreement between the creator or their representative—such as a publisher or record label—and the user.[9] Governed by the Copyright Act of 1976, music licensing ensures that creators are compensated and retain control over their works.[10] Music licensing is primarily guided by Sections 107 through 122 of the Copyright Act, including Section 115 for mechanical licenses and Section 114 for digital performance rights.[11] For music performed publicly, venues and organizers typically obtain blanket licenses from performing rights organizations, such as ASCAP, BMI, or SESAC.[12] These licenses permit the public performance of a vast catalog of songs in exchange for fees paid to the rights holders.[13] Unauthorized uses that fall outside the scope of these licensing agreements constitute copyright infringements, exposing users to liability under the Copyright Act.[14]

However, under Section 107 of the Copyright Act, the fair use doctrine serves as a safe harbor provision, permitting the limited and transformative use of copyrighted works without permission.[15] Additionally, the Copyright Term Extension Act (the “CTEA”) provides certain exemptions for libraries, archives, and similar institutions for purposes of preservation, scholarship, or research.[16] Political speech, while protected under the First Amendment, does not afford any more or less copyright protection to works used in politically significant contexts.[17] As a result, the application of fair use in the context of music licensing for political campaigns requires a fact-intensive analysis of the four statutory factors under Section 107 of the Copyright Act: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or value of the copyrighted work.[18] Courts analyze these factors on a case-by-case basis, taking into account the specific circumstances, including whether the use is transformative, its intended purpose, and its impact on the market.[19]

FAIR USE IN POLITICAL CAMPAIGNS

1. Purpose and Character of the Use.

The first factor evaluates whether the use is transformative or merely derivative and whether it is commercial or non-commercial in nature.[20] Courts have found that the use of copyrighted material in political campaigns can be non-commercial if it serves a political purpose rather than a commercial one.[21] For instance, in Galvin v. Illinois Republican Party, the court noted that the defendants’ objectives were more nonprofit than commercial.[22] Similarly, in Thomson v. Citizens for Gallen Committee, the court ruled that using a copyrighted song in a political advertisement was part of a political campaign message, implicating First Amendment considerations.[23] However, when a song is used to promote a candidate rather than for commentary or criticism, courts may view the use as commercial, making it less likely to qualify as fair use.[24]

II. Nature of the Copyrighted Work.

The second factor considers the level of creativity in the original work.[25] Creative works, such as music, receive stronger protections under copyright law, making unauthorized use more difficult to justify under fair use.[26] In contrast, courts are generally more lenient when a work is factual or informational, as these types of works allow for greater fair use flexibility.[27]  In the context of political campaigns, this factor generally weighs against fair use since the inherently creative nature of music limits its unauthorized use.[28]

III. Amount and Substantiality of the Portion Used.

The third factor examines both the quantity and qualitative importance of the portion taken in relation to the original work.[29] Copying an entire work generally weighs against fair use, though courts may still find fair use if the use is transformative and serves a different purpose.[30] For example, in A.V. v. iParadigms, LLC, the court recognized that even substantial copying could be permissible if the use was sufficiently distinct.[31] However, using an entire song, such as the Foo Fighters’ “My Hero” at a Trump rally, would likely weigh against fair use, especially if it does not significantly alter the song’s original meaning or context.[32]

IV. Effect on the Potential Market.

The fourth factor assesses whether the unauthorized use harms licensing opportunities or diminishes the value of the copyrighted work.[33] If the use is transformative and non-commercial, it may have minimal impact on the market.[34] In Thomson v. Citizens for Gallen Committee, the court found that the effect of the use on the potential market was negligible.[35] However, unauthorized uses that create unwanted associations between an artist and a political figure can damage the value of the work and weigh heavily against fair use.[36] Ultimately, the resolution of these disputes requires courts to weigh the interests of creators against broader societal values.

CONCLUSION

In light of these concerns, the legal and cultural tensions between licensing, copyright claims, and fair use reveal the importance of respecting intellectual property rights while allowing room for political expression. For artists, unauthorized uses of their music risk reputational harm and loss of control over how their works are perceived. For political campaigns, failure to secure proper licensing not only risks legal consequences but also undermines relationships with artists and the broader public. Respecting music licensing laws is not just a legal necessity but a fundamental acknowledgment of artists’ rights, reinforcing the importance of securing proper authorization before use.

[1] Lucia Suarez Sang, Foo Fighters’ ‘My Hero’ Used at Trump Campaign Event, CBS NEWS (Aug. 24, 2024), https://www.cbsnews.com/news/foo-fighters-my-hero-trump-campaign/.

[2] Id.

[3] Id.

[4] Elizabeth Wagmeister, Foo Fighters Join Artists Who Want to Stop Trump from Using Their Music, CNN (Aug. 28, 2024), https://www.cnn.com/2024/08/28/entertainment/beyonce-celine-dion-foo-fighters-trump-campaign/index.html.

[5] Political Campaigns and Music, ASPCA, https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf (last visited Mar. 9, 2025).

[6] Ben Picozzi, What’s Wrong with Intentionalism? Transformative Use, Copyright Law, and Authorship, 132 YALE L.J. 1308 (2023).

[7] Caitlin Yilek, Family of Isaac Hayes Threatens to Sue Trump for Using His Song at Rallies, CBS NEWS (Aug. 12, 2024), https://www.cbsnews.com/news/isaac-hayes-trump-hold-on-im-coming/; see Compl., Isaac Hayes Enters., LLC v. Trump, No. 1:24-cv-03639-TWT (N.D. Ga. Aug. 16, 2024).

[8] See 17 U.S.C. § 106.

[9] The Copyright Royalty Board sets royalty rates while the Mechanical Licensing Collective oversees compliance. Johnson v. Copyright Royalty Bd., 969 F.3d 363, 368 (2020).

[10] The Copyright Act, which grants copyright holders exclusive rights to reproduce, distribute, publicly perform, and display their works. 17 U.S.C. § 106; 17 U.S.C. § 1101.

[11] Id. §§ 107-122.

[12] There are four main types of licenses: mechanical licenses allow the reproduction and distribution of musical works; synchronization licenses are required for music in audiovisual productions and must be negotiated directly with copyright holders; public performance licenses, managed by PROs like ASCAP and BMI, cover live and recorded performances in public spaces; and digital rights licenses regulate streaming and downloads, often requiring both mechanical and public performance rights. Blanket licenses simplify music use by allowing users to access a catalog for a fixed fee. General Licensing, ASCAP, https://www.ascap.com/help (last visited Mar. 9, 2025).

[13] See 17 U.S.C. § 101.

[14] 17 U.S.C. § 1101; see, e.g., A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (holding that Napster users infringed their licensing agreement by reproducing and distributing copyrighted music through a peer-to-peer file-sharing system. The court also rejected Napster’s fair use defense, finding that the users’ activities violated the exclusive rights of reproduction and distribution under Section 106).

[15] 17 U.S.C. § 107.

[16]  Id. § 101.

[17] Planned Parenthood Minn. v. Daugaard, 799 F. Supp. 2d 1048, 1055 (D.S.D. 2011).

[18] 17 U.S.C. § 107.

[19] Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 529 (9th Cir. 2008) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575–76, 581 (1994), “we do not consider these factors in isolation but weigh them together, in light of the copyright law’s purpose ‘to promote the Progress of Science and useful Arts’ by protecting artistic and scientific works while encouraging the development and evolution of new works.”).

[20] Id.

[21] Griffith v. Fenrick, 486 F. Supp. 2d 848, 853 (W.D. Wis. 2007).

[22] Galvin v. Ill. Republican Party, 130 F. Supp. 3d 1187, 1194 (N.D. Ill. 2015).

[23] Thomson v. Citizens for Gallen Comm., 457 F. Supp. 957, 961 (D.N.H. 1978).

[24] Id.

[25] 17 U.S.C. § 107.

[26] Elvis Presley Enters. v. Passport Video, 357 F.3d 896, 897 (9th Cir. 2003).

[27] Am. Soc’y for Testing & Materials v. Pub..Resource.Org, Inc., 896 F.3d 437, 450 (2018).

[28] See, e.g., Tresóna Multimedia, Ltd. Liab. Co. v. Burbank High Sch. Vocal Music Ass’n, 953 F.3d 638 (9th Cir. 2020) (holding that creative works were considered “closer to the core of intended copyright protection” than informational and functional works, and given the undoubtedly creative nature of the original song arrangement “Magic,” this factor weighed against a finding of fair use.).

[29] 17 U.S.C. § 107.

[30] A.V. v. iParadigms, LLC, 562 F.3d 630, 642 (4th Cir. 2009).

[31] Id.

[32] See Worldwide Church of God v. Phila. Church of God, 227 F.3d 1110, 1118 (9th Cir. 2000) (copying an entire work “militates against a finding of fair use” (quoting Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir. 1986))).

[33] 17 U.S.C. § 107.

[34] Thomson v. Citizens for Gallen Comm., 457 F. Supp. 957, 961 (D.N.H. 1978).

[35] Id.

[36] Soc’y of the Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 64 (1st Cir. 2012).