By now, it has become a tradition. Political candidates or elected officials use a popular song at their rally, artists protest because they don’t agree with their politics, and artists then threaten to take legal action. In the end, however, politicians win. That’s exactly what happened with Rihanna recently.
In early November, the singer learned President Donald Trump had been using her popular song “Don’t Stop the Music” at his rallies, prompting the Barbados native to say on Twitter she would protest. The next day, the Trump administration received a cease and desist letter stating the president had “utilized [Rihanna's] musical compositions and master recordings, including her hit track ‘Don’t Stop the Music,’ in connection with a number of political events held across the United States,” and that the singer “has not provided her consent to Mr. Trump to use her music. Such use is therefore improper.”
But “improper” is a word that doesn’t compute in the legal world, as venues and political campaigns have performance licenses. Therefore, songs that fall under them can be played whether the artist likes it or not. Despite this reality, the performing rights organization Broadcast Music, Inc. (BMI) backed Rihanna, sending a similar cease and desist to the administration. Referencing the “Political Entities License Agreement,” BMI said the license no longer applied because Rihanna had revoked her permission.
“As such,” BMI stated in the note sent to the administration, “this letter serves as notice that Rihanna’s musical works are excluded from [an agreement between BMI and the Trump Campaign for song usage], and any performance of Rihanna’s musical works by the Trump Campaign from this date forward is not authorized by BMI.”
Despite the organization’s attempt at pushing the president, its own political entities licenses are clear, as they are blanket agreements allowing politicians to use BMI’s catalog. Still, BMI is defending the artist, saying she has a right to revoke it. But not the right to revoke a licensing agreement with a venue, as they are different agreements. If Trump uses Rihanna’s song in a venue with a traveling license, then BMI might not be able to use the same excuse.
With cease and desist letters being toothless before the law since they need a court order to be backed up, Rihanna is left with few options as a legal fight against the administration over her song would be extremely costly—and most likely fruitless. So what do artists like her gain from going against politicians publicly for using their music?
Privilege, of course.
Intellectual Property and Liberty
While anyone could understand the frustration an artist would feel seeing their art being used in a political event defending policies they don’t agree with, once you create work such as music, it’s hard to control who gets to enjoy it. Unlike real property, which has a history that predates the very existence of government, intellectual property has “no reasonable connection to our actual legal tradition,” law professor Lawrence Lessig once explained. This means the protection of intellectual property was granted by the government.
Don’t believe me? Look at Article I, Section 8, Clause 8 of the United States Constitution, which states that Congress has "the power to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
As Director of Litigation at the Liberty Justice Center Jacob H. Huebert explains, the wording grants artists and other creators a positive right, or temporary privilege—not a natural right.
Rihanna’s anger at the president for using her music at rallies, which she calls “tragic,” is understandable, but her decision to refer the matter to the state is based on the shaky idea that a creator has a right to use government’s monopoly on force to violate property rights in order to defend intellectual property, as legal scholar Stephan Kinsella explains. The fact that this matter involves the president, who’s not the most popular and will never be one to defend liberty, doesn’t change the facts.
Next time an artist decides they’re not happy with how their music is being used, they should first ask themselves whether they’re willing to use the power of the state to violate someone else’s property rights on their behalf. If the answer is still yes, then they’re not trying to defend property rights, after all. They’re just after government-granted privileges.