So for years and years and years, every time a musician or a group whined about politicians using their music at an event, we'd point out that they have no legal basis to complain. Assuming either the venue or the campaign (or both) had the proper blanket licenses from ASCAP/BMI/SESAC no other permission was needed. That's actually part of the point of the structure of those blanket performance licenses. Everyone recognizes that it would be virtually impossible to play music publicly without such a blanket license structure. And so, every time a musician complains that the use was "unauthorized," they're almost certainly wrong. In fact, we pointed that out (again) for the nth time earlier this week
. Now, as we've said all along, we still think smart
politicians and smart
campaigns should first seek out musicians who don't mind (or, better yet, who endorse the candidate), because otherwise they're just giving someone famous an easy platform to slam them. But, from a legal standpoint, we've always pointed out that there's basically no legitimate argument here, and people who toss around non-copyright theories like publicity rights and Lanham Act arguments are generally wrong.
But... we forgot about one thing. Copyright law is so
screwed up that there actually may be a case where the law does require permission. And it has to do with pre-1972 sound recordings
. If you've been reading Techdirt for any length of time, you know that we've discussed this issue many times in the past. Historically, while compositions
were covered by copyright, under the 1909 Copyright Act sound recordings
were not. This resulted in a patchwork of state laws (and state commonlaw) that created special forms of copyright at the state level. Eventually, sound recordings were put under federal copyright law, but it only applied to works recorded after February 14, 1972. Works recorded before that are not under federal copyright law, but remain basically the only things under those state copyright laws (the 1976 Copyright Act basically wiped out state copyright laws for everything
but that one tiny thing).
In the last few years, this has created a bit of a mess and a whole bunch of lawsuits. Why did these lawsuits just start recently? In large part because the recording industry is desperate for new revenue streams, having failed to adapt to a changing market. So they've focused an exorbitant amount of attention on using pre-1972 sound recordings as a wedge against internet platforms. We've covered
various stories on this, with many siding with the labels, but a few
going the other way.
Needless to say, the law around pre-1972 sound recordings is still a bit of a mess, and arguably a work in progress, and the courts struggle to sort it all out. And that brings us back to the issue of blanket licenses. The always excellent reporter Eriq Gardner has a fantastic story noting that thanks to this mess with pre-1972 sound recordings and what copyright regime they fall under, it's possible that the Rolling Stones may have a legitimate legal gripe
against Donald Trump and the Republican convention, while Queen... would not. Under modern copyright law, songs recorded on or after February 15th, 1972 require an ASCAP/BMI/SESAC license for the performance rights. But performance rights for sound recordings was basically a new concept at the time, and it's unclear how they apply to pre-1972 sound recordings.
The issue is not that simple, because nothing around this particular issue is simple. However, based on at least some
of the rulings in pre-1972 sound recording copyright cases, federal copyright law doesn't apply at all to those songs (other court opinions have come out otherwise). And thus, there's an argument that the requirements involving blanket licenses for pre-1972 sound recordings may not apply, because the use of the sound recording may require a special public performance license from the copyright holder:
To sum up where we're at: An ASCAP license covers the public performance of songwriting, but not the sound recording. A sound recording authored before 1972 like "You Can't Always Get What You Want" might require special permission to be performed in public. Whomever owns that song — whether it's the Rolling Stones or their record label — could bring a lawsuit asserting misappropriation.
But... it depends. In this case, it depends on the specific state copyright laws in Ohio and how a judge interpreted it. Of course, it's still tremendously unclear because, (as we noted at the time), the big ruling on pre-1972 sound recording copyrights for Flo & Eddie basically upset decades of settled law
on whether or not "public performance" rights applied under state copyright law. For decades, it was strongly believed that those state copyright laws applied to things like reproduction and distribution but not
public performance rights. It's only through rewriting history (and confusing some judges) that suddenly public performance rights have been shoehorned back into those mostly obsolete state copyright laws.
As Gardner points out, one of the most famous cases involving performance rights actually involves Ohio state law. It's the somewhat infamous Zacchini v. Scripps-Howard
involving a question around a TV station broadcasting an "entire" human cannonball act. In a ruling that is still troubling, the Supreme Court turned performance rights into a quasi-copyright. But that ruling could be used if the Rolling Stones tried to argue that the performance violated Ohio state copyright laws on public performances. It would be a nutty
case, and a risky one, but it's possible that it might work. I'm guessing the Rolling Stones aren't actually interested in following through on any actual legal threat, but this is yet one more example of just how screwed up copyright law is today.