News

Unauthorised use of music in political campaigns – the “trump card” may be moral rights

24.06.2020

It has recently been reported that Tom Petty’s family have issued a cease and desist warning aimed at preventing the US President Donald Trump from using Tom Petty songs at or in conjunction with presidential campaign events.

Petty’s family issued a statement via Twitter on 20 June 2020 that “Tom Petty’s song “I Won’t Back Down” was used today at Donald Trump’s campaign rally in Tulsa, OK. Trump was in no way authorised to use this song to further a campaign that leaves too many Americans and common sense behind.”

Moulis Legal’s Shaun Creighton and Sharon Gerussi-Lock look at some of the legal issues at hand.

Tom Petty was clearly a rebel with a clue. Taking inspiration from Tom Petty, it appears that his family won’t back down.

Music and politics

Musicians, keen to protect their artistic integrity and copyright interests, have long been taking on US presidential campaigns for using songs without the musician’s permission. Indeed, it’s not the first time Donald Trump has raised the ire of musicians. In 2015, the Donald Trump campaign used Neil Young’s “Rockin’ in the Free World” when announcing he was running for President, causing Young to issue a statement that use of that song was unauthorised. Undeterred, Trump has continued to use music as part of his campaigns (including music of Rihanna, Prince and Steven Tyler), even when not authorised by the relevant musician(s).

This is not an issue unique to US politics. For example, New Zealand had its own political artistic stoush when an Eminem “sound-alike” was used in a John Key re-election campaign. In 2014 Eminem and his publishing company claimed copyright infringement against the National Party and were awarded damages by New Zealand High Court.

Closer to home, although not taking legal action, Mark Seymour of Hunters & Collectors publicly stated that “we are disgusted by the appropriation of our much-loved anthem by a political party we utterly despise” when the Liberal Party leader Bob Cheek used the band’s Holy Grail song in conjunction with the 2002 Tasmanian State election[1].  Evidently, Mr Cheek played the song at a launch event conducted at the Derwent Entertainment Centre after first confirming that the venue had an Australasian Performing Right Association licence. In the Holy Grail song, the Hunters & Collectors sing “we ran into millions, and nobody got paid”. As this memo suggests, use of a song in conjunction with something the author “utterly despises”, even when a licence to use the song in public has been granted, may enable the author to obtain relief under various laws, including the moral right of integrity.

Petty or protecting legitimate rights

Copyright ownership in music is not straight forward, as different people may own copyright in the lyrics, the musical works (melody, harmony and rhythm), the sound recordings and the music videos.

To further complicate the law associated with copyright and music:

  • in relation to copyright ownership, when a band is signed by a record label, they will often assign the copyright of their sound recordings to that record label and sometimes licence certain publishing rights to the record label’s publishing arm or a third party;
  • it is generally possible to obtain a public performance licence to use a catalogue of musical works; and
  • although copyright can be assigned (transferred), moral rights cannot, with the author retaining their moral rights.

During his career Tom Petty was known as a serious protector of artistic control. Ensuring his message and songs were delivered appropriately and to the correct audience was key aspect of what he viewed at protecting his artistic integrity. Despite this hard-line approach to protecting his work, Petty understood that, ‘…a lot of rock ‘n’ roll songs sound alike’.[2]

You would be forgiven for assuming that his statements regarding similarity meant anyone could mimic his work. This was not the case. Petty understood the importance of balancing song which are similar against songs which are infringing.  For example, Tom Petty received royalties from the song by Sam Smith’s “Stay with Me” after its writers acknowledged similarities between it and “I Won’t Back Down”.

Permission to play songs in public

To avoid having to identify who owns copyright in music every time music is played in public, it is generally possible to obtain a public performance licence to use a catalogue of musical works. This catalogue includes music of thousands of musicians.

In Australia, this licence would be from APRA/ AMCOS, comprising the Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society. These licences are limited for certain purposes, so it is important to check the scope of the licence to ensure that permission from the copyright owner is not also required.

Relevantly for the dispute between Tom Petty’s family and President Trump, the relevant licensing body in the USA is ASCAP. In the USA, ASCAP licence the public performance rights for the music of its members, but do not license recording rights. These rights are usually managed by the record company and/or publisher. According to ASCAP[3], an ASCAP public performance licence used for a political campaign is issued to an individual candidate ‘only until the candidate is sworn into office’ and not for the duration of the candidate’s term in office. Furthermore, ASCAP members may ask ASCAP to exclude specific songs from specific political campaigns.

From a licensing perspective, music associated with a campaign at large can be distinguished from music played at public events where a campaign is conducted. This is because a venue where a public event is conducted may have a suitable licence covering music played at that venue (as was the case with the Tasmanian Liberal Party use of the Hunters & Collectors song). Conversely, a political campaign may use music throughout a campaign, irrespective of the location or platform. A specific licence would generally be required in such circumstances.

Copyright permissions in Australia or in the USA (as the case may be) are not necessarily the end of the legal story when used in conjunction with well known persons. In Australia, a musician may retain independent causes of action under Australian Consumer Law, whereas in the USA, musicians may retain causes of action under right of publicity laws (noting Australia does not recognise the right of publicity) or under the Lanham Act if there is a suggestion of false endorsement.

Furthermore, as noted above, it is often the case that the owner of copyright in the music and the owner of moral rights in the same music are not the same person. The creator (author) of copyright works retains an independent cause of action for mis-use of their moral rights, including for any derogatory treatment.

Moral rights

Moral rights arise under the Australian Copyright Act 1968 (Cth) (the Copyright Act) in respect of literary, dramatic, musical works and films but not sound recordings.  Creators of these works have three moral rights:

  • right of attribution of authorship
  • right against false attribution
  • right of integrity

It is the right of integrity that could provide authors with remedies for unauthorised use of songs in political campaigns.

Moral rights, including a right of integrity, are recognised by the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), which is an international agreement governing copyright, to which both Australia and the USA are signatories.

We are Australian lawyers so can not advise on laws in the USA, however our research indicates that moral rights have not been introduced into relevant legislation in the USA[4]. This, in turn, means that authors in the USA can not currently utilise the moral right of integrity to prevent a political campaign from using a song.

Use of the musical work and lyrics in the context of a political campaign in Australia and in other countries recognising moral rights could give rise to a claim for infringement of the right of integrity. Under the Copyright Act, the right of integrity confers on the author “the right not to have the work subject to derogatory treatment”.

“Derogatory treatment” in respect of a literary and/or musical work is defined as:

  1. the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
  2. the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.

If wishing to make a moral rights claim in Australia if, for example, a political campaign used a song without authorisation, the song author would need to show that the use of the song in that way is prejudicial to the author’s ‘honour or reputation’.

Right of integrity moral rights cases are rarely litigated in Australia. However an author who is aggrieved at having a song associated with a political campaign they find repugnant, may argue that such use is prejudicial to the author’s honour or reputation, especially since they author may become associated with that campaign.

Misrepresentation or false endorsement

The USA and many other jurisdictions have right of publicity laws which can protect a well-known person’s likeness or image. The USA also has other laws such as the Lanham Act which may provide relief from false endorsement, which could provide a cause of action if, for example, a political campaign implies the performer endorsed the campaign. A “catch 22” here of course is that a performer will often issue a statement immediately denouncing any possible endorsement, as was the case with the statement issued by Tom Petty’s family. This in turn would make it more difficult to establish that there was a false endorsement, since the relevant public would become aware that use of the song was unauthorised (and not an endorsement).

Unlike the USA, Australia does not have a right of publicity to protect against wrongful association or endorsement for celebrities and artists. However, the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act (Cth) (ACL) provides relief from certain forms of misrepresentations.

In addition to the broad prohibition against misleading or deceptive conduct pursuant to section 18 of the ACT, section 29 of the ACL provides prohibitions against:

  • false or misleading representations concerning a testimonial by any person (section 29(f))
  • false or misleading representations that the person making the representation has a sponsorship, approval or affiliation (section 29(h).

The interaction between copyright laws and consumer protection laws are important for persons wishing to protect their rights to understand. This is especially so in the context of music which may be subject to a blanket licence, but where the facts suggest a misrepresentation as to approval or affiliation.

Law and music – not for the faint Hearted

During his career, Tom Petty and his Heartbreakers were involved in a number of legal disputes. True to the lyrics, they didn’t back down.

As this memo highlights, enforcement of intellectual property and related rights in music is not for the faint hearted. However, Australian law does provide a wide range of potential rights and remedies to musicians for unauthorized use of music.

In the context of unauthorized use of music in a political campaign if conducted in Australia, the “trump card” is likely to be the moral right of integrity.

If you consider someone has infringed your copyright or other intellectual property rights, it is always prudent to seek the assistance of a specialist intellectual property lawyer.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2020

[1] https://www.smh.com.au/entertainment/music/hunters-and-collectors-furious-libs-used-their-song-20020712-gdfg03.html

[2]   Nei Strauss, “Rolling Stone Interview, 2006” Rolling Stone, (June 30, 2006).  

[3] https://www.ascap.com/-/media/files/pdf/advocacy-legislation/political_campaign.pdf

[4] https://www.thembj.org/2019/09/moral-rights-and-the-use-of-popular-music-in-political-campaigns/