Copyright and the US primaries: From Adele to Neil Young, why do artists keep getting Berned by politicians?

From Trump to Clinton to Cruz, there is no presidential campaign that doesn’t involve the candidate strutting onto the stage to an ‘inspirational’ song.

But what if the artist is not ok with the politicians encouraging voters to ‘Feel the Bern’ or ‘Make America Great Again’ with their tune?

This has been the case during the current US presidential primary elections, with Adele, Neil Young, REM, and Steven Tyler (amongst others) all asking Republican candidate Donald Trump to stop using their songs on his campaign trail.

And Trump is not the only presidential hopeful to attract the ire of musicians this election season – Marco Rubio was sent a cease-and-desist letter from Axwell & Ingrosso to stop using their song ‘Something New’ at his campaign events, and Scott Walker was publicly lambasted by the Dropkick Murphys after using one of their tracks.

What’s more, it’s not a new trend, with countless politicians found to have used songs as their election soundtrack without permission in the US, France, the UK, and even Australia. (We’ve previously written about Californian senate candidate Chuck DeVore and his unauthorised use of ‘The Boys of Summer’ here and here.)

At this point, blaring your favourite bangers on stage without asking first can almost be seen as an election tradition akin to kissing babies.

But isn’t it against the law?

A politician’s performance

The unauthorised use of a song during a campaign event seems like it would be clear-cut copyright infringement. Without having granted permission otherwise, copyright holders have the exclusive right to perform their works in public, which includes playing a song at a public venue. It is also worth mentioning that in Australia, the copyright in a song is made up of a number of separate copyrights. A politician seeking to play a song at their political rally would need to ensure that that had permission in relation to the musical work, the lyrics (a literary work) and the sound recording.

However, many event organisers and venues are able to obtain blanket licences from large licensing organisations, which gives them the right to play music from all the artists on their roster. (To give an idea of how many artists that would cover, APRA AMCOS in Australia represents over 87,000 music creators, while BMI in the US represents over 700,000.) This means a song that is played at a rally could potentially fall under a blanket licence and thus avoid copyright infringement, regardless of the artist’s political inclination. This was demonstrated back in 2008 when, despite protests from the band, vice presidential candidate Sarah Palin continued using Heart’s song ‘Barracuda’ on the basis that the John McCain campaign held a blanket ASCAP licence that covered its use. Trump also reportedly had permission to use Neil Young’s song ‘Rockin’ in the Free World’ through an ASCAP licence (but discontinued his use after Young voiced his disapproval).

It should be noted that some licensing organisations have special agreements or exceptions for political events which require the artist’s prior approval or allow for works to be excluded upon notice. Nonetheless, these blanket licences go some way in fathoming why so many politicians aren’t hesitant to press play.

The moral high ground

Even if there isn’t any technical copyright infringement, the unauthorised use of a song in connection with a political campaign also raises the issue of moral rights. Under the Australian Copyright Act, an author of a musical work and a performer has the right not to have their work or performance subjected to “derogatory treatment”, which broadly means treating the work or performance in a manner which is prejudicial to their honour or reputation.

In Perez & Ors v Fernandez, it was held that the use of an audio drop in a song which created a false association between Pitbull and DJ Suave constituted derogatory treatment. Following this, it could be argued that a ‘false association’ is created by the use of an artist’s song in a campaign, though the artist would then have to prove how this association is prejudicial to their reputation.

In the United States, the moral rights argument is more tenuous. Only visual artists have express statutory protection, and the courts have also been reluctant to recognise any further moral rights. For example, in the Cold War era New York case Shostakovich v Twentieth Century-Fox Film Corp. (which was decided before the visual artists’ statutory protection was introduced), Russian composers failed to prevent their compositions and names from being used in anti-Soviet film The Iron Curtain, even though they had succeeded in an identical case in France. The court held that as the existence or scope of moral rights under US law was not clear, it refused to grant relief on those grounds.

US against the world

Putting aside moral rights, artists have several other possible claims under US law to pursue action against candidates behaving badly:

  1. Trade mark dilution – The Lanham Act protects against confusion or dilution of trade marks, such as a band or artist’s name, from unauthorised use.
  2. False endorsement – The Lanham Act also covers false endorsement, which occurs where use of the artist’s work implies the artist’s sponsorship or approval or the product or service (or here, the candidate).
  3. Right of publicity (or personality) – There are a number of state-based ‘publicity rights’ which, broadly speaking, prevent the unauthorised commercial use of a person’s name or other aspect of identity in order to gain a benefit such as an endorsement.

But, much like all political issues, whether playing a song at a rally is sufficient to imply an endorsement by the artist is up for debate.

Consumer politics

This issue also raises possible action under the Australian Consumer Law (ACL). There is a strong argument that the use of a song in a campaign may imply an endorsement or approval of the politician or party by the artist, and therefore constitute misleading and deceptive conduct or a false or misleading representation under sections 18 and 29(h) of the ACL.

However, use in the context of a political campaign is highly unlikely to satisfy the requirement that the conduct occur “in trade or commerce” for these claims. As we’ve noted before, courts have found representations made as part of a political campaign do not have the necessary commercial character under the ACL. No matter how much a politician might seem like a used car salesman.

The results are in…

The significance of the right campaign song for a political brand can’t be underestimated. These songs help set the tone and can often become emblematic of the whole campaign. (Think Barack Obama and ‘Signed, Sealed, Delivered I’m Yours’, or Leslie Knope and ‘Get On Your Feet’.)

This could explain why even in light of the potential legal consequences – and the possibility of being publicly and vehemently disavowed by an unsupportive artist – so many politicians are happy to play first and ask questions later.

Still, as the US primaries roll on, it’s an interesting thought to keep in mind the next time a candidate steps up to the stage. It may be history in action, but it could be infringement in action, too.