Trademarks:
Before looking into how musicians use trademark law for licensing music, first we must understand what a trademark is. Trademark law like copyright law, seek to protect a creators intellectual property. Trademark refers to intellectual property of any name, word, phrase, symbol, design, or combination thereof that identifies it's source. The trademark is an identifier for the owner, creator, or business it belongs to.
How does this relate to music in political campaigns?
As I've discussed previously, political campaigns are inherently different because they can imply a political connection between the artist and candidate. Copyright law will only stop the continued use of the work or pay for damages. If the artist feels the song took away from their brand, it becomes an issue of trademark. Trademark infringement for this use addresses the damage to the reputation or brand of the artist or copyright owner(s).
Artists, like business or products, build and brand and following around themselves. When an artist's song is used, there is an implication of support. If an artist does not support a candidate, it taints their image and brand they created for themselves. Most artists in this position will only address the misuse as copyright infringement, but if they desire, they can address this as trademark infringement as well. The Lanham Act is the federal trademark statue that artists can use in defense for this concern.
The Lanham Act
The Lanham Act also known as the Trademark Act of 1946, is the federal statue for protecting trademarks. In order for a trademark to be eligible to protection, "it must be in use in commerce and it must be distinctive." For music, the infringement comes from the confusing and misleading endorsement of the artist. This section below outlines artists protection:
Section 43(a) of the U.S. Lanham (Trademark) Act forbids false designations of origin, false descriptions, and dilution. It covers false implied endorsement in the following terms:
Any person who, in connection with any goods or services… uses in commerce any word, term, name, symbol, or device…or any false or misleading description …or representation of fact, which is likely to cause confusion … or to deceive as to the affiliation, connection, or association of such person with another person, or as to the… sponsorship, or approval of his/her goods, services, or commercial activities by another person, shall be liable in a civil action by any person who believes that he/she is or is likely to be damaged by such act.
For part two, see my blog post here (link)
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