By now you’re probably familiar with the brouhaha brewing over the Republican National Convention’s usage of Queen’s “We Are The Champions” to highlight Donald Trump’s entrance onto the convention stage. Both Queen and Sony/ATV Music Publishing say that they never licensed the song for use by Mr. Trump, his campaign, any of his organizations, or anyone involved with the RNC. The GOP countered by saying that they had the rights to use the song because they had paid for a blanket license with one of the performing rights organizations (PROs) that keep track of performances of licensed material to compensate performers, publishers, and songwriters. Who’s right?
I’m not going to dive deep into PROs, the various and sundry types of licenses, or delve into the controversy of the proposed new ruling from the Department of Justice Antitrust Division and former Google lawyer Renata Hesse. David Lowery does a much better job of skewering that bit of inanity than I could ever do.
What I will do is talk briefly about the type of usage permitted under a blanket license, and about whether the RNC’s usage of the song fell within those parameters. So what is a blanket license? It’s a broad license that allows the licensee to use all of the music that is represented by that licensing organization.
Who purchases a blanket license? Radio stations, for one. It’s much easier to pay a single fee and have access to an entire library of music licensed by one of the PROs than negotiate with every artist, copyright holder, or label. Broadcast (and likely cable) TV negotiate their own network licenses to enable them to use licensed music in their original programming. Adult entertainment businesses may decide to license a PRO’s entire library rather than try to manually keep track and license songs that accompany the entertainers. Conventions can choose to purchase a blanket license for songs that are broadcast as background music or performed by cover bands hired to provide entertainment.
Blanket licenses cover “small rights”, which includes using a snippet of a song as a ringtone or an entire work in a live performance. They do not cover so-called “grand rights” or “dramatic rights”, which interestingly enough aren’t clearly defined in copyright law. BMI, ASCAP, and other PROs in America do not license grand rights in America.
What are grand rights? You can read the examples in the ASCAP FAQs, but musician and composer Jack Vees (who also serves as the Director and an instructor in the Center of Studies in Music Technology at Yale School of Music) has the most concise definition I’ve found:
Once you create something in which music is only one component, it doesn’t matter whether the music constitutes as much as 85 percent or as little as 5 percent of the content. If the other components are not subsumed within the structure of the music, blanket agreements like the “small rights” ones that ASCAP, BMI, and SECAC maintain with venues all over the country, are no longer applicable. Therefore, fees must be determined on a case-by-case basis.
Like Professor Vees, I’ll caution you that I am not a music industry lawyer, I’ve never played one on TV, and I’ll add that I don’t remember the last time I slept at a Holiday Inn Express. What I do know is that the spectacle of introducing Donald Trump to the local and televised audiences of the RNC, set to the tune of “We Are The Champions”, sounds like a scenario where the music is part of a larger whole, and would fall well outside the parameters of a blanket license.
I fully expect one or more of the parties involved (the RNC, the GOP, one or more of the Trump campaign and/or organizations) will be cutting a hefty check to Sony/ATV at some point in the not-too-distant future as a settlement in a lawsuit filed on behalf of the members of Queen.