Off the Campaign Trail and Into the Courthouse: Does a Political Candidate's Use of a Song Infringe on the Performer's Trademark?

Abstract

As the use of popular music in political campaigns has skyrocketed, so have complaints by musical artists who do not want their songs associated with candidates they do not support. Recently, musical artists have asserted that this constitutes trademark infringement by falsely suggesting that they endorse a candidate. Relying on court decisions and statutes, this article analyzes song-based performer trademarks and whether campaign's uses of music constitute infringement. Ultimately, this article concludes that typically musical compositions and sound recordings cannot be used as performer trademarks and, in any event, political uses would not amount to infringement.