UIC Review of Intellectual Property Law


Stefan Michel


The conflict between politicians and musicians over the use of songs as campaign music is a recurring issue in almost every election cycle. Due to its energizing and unifying force, music can be an efficient instrument in political campaigning. However, artists feel aggrieved as the use of their music might invite the assumption that they are somehow endorsing the candidate. After giving a brief overview of the history of campaign music and the qualities that make it so attractive for campaigning, this piece will analyze the chances a musician stands in the jurisdictions of the U.S., the UK and Germany. The choice of the assessed jurisdictions is reflective of the common law approach to copyright found in the U.S. and in the UK and the author’s right system represented by Germany. In the absence of an express moral rights regime for musical works in the U.S., artists need to rely on adjacent claims, including copyright, the right of publicity and trademark law, to vindicate their moral interests. It will be seen, though, that these claims are futile in the assessed scenario in which the campaign obtains a public performance license. While the UK implemented statutory moral rights into its copyright law, the situation does not look promising either. The considerably narrow scope of acts that trigger the integrity right bars a successful moral rights claim. In contrast, musicians in Germany could assert their moral rights against a campaign that performed their songs publicly although a public performance license has been purchased. The comparative analysis shows that this outcome can be traced back to the basic rationales of copyright and author’s rights. Because moral rights are the “backbone” of author’s rights protection, a strong emphasis is put on the personal interests of the author. Contrastingly, the U.S. and the UK show less conviction towards moral rights and rather perceive copyright material as a commodity. It will be argued that this pre-understanding and the ensuing reluctant efforts in providing for moral rights protection are what renders the prospects in the U.S. and the UK less promising. Lastly, it will be argued that musicians may well vindicate their moral interests in pursuing nonlegal avenues and using their popularity to advance their aims. If artists turn to the media and condemn the use of their songs, they are able to generate negative publicity for the campaign and compel candidates to comply with their demands. Considering this, the increasing importance of social media will give musicians more leverage as they can communicate with the public and their fans more directly.