Adele, Sir Elton and The Donald: what to do when copyright law doesn’t come up trumps

The thorny issue of artistic copyright licences, artistic permissions and political campaigning has once again hit the headlines as both Adele and Sir Elton John have this month asked presidential hopeful, Donald Trump, to refrain from playing their songs at his rallies.

John Trump

This is not a new phenomenon and memorable examples litter the history books. In 1984, much to his chagrin, Bruce Springsteen’s ‘Born in the USA’ was used in a political campaign by President Ronald Reagan. Four years later, the use of ‘Don’t Worry, Be Happy’ by George H. W. Bush in his presidential campaign compelled Bobby McFerrin to drop the song from his future performances.

More recently, British rock-band Keane made it clear on social media that the Conservative Party was using ‘Everybody’s Changing’ without express permission.

However, express permission or not, lawyers acting for musicians in these instances have few options available to them, despite the apparent lack of authorisation.

The first port of call for lawyers when it comes to a music licensing dispute is a breach of copyright claim, but in these circumstances, protection is rarely found there. Political rallies are held in venues which will, in most cases, hold public performance licences which permit music to be played in public. Playing music when the candidate comes on stage is therefore permitted by the venue’s public performance licence.

Additionally, broadcasting and recording the event by news correspondents is unlikely to give rise to an automatic copyright infringement claim by the music rights owner, not least because the broadcast of the event with the music playing in the background is permitted under fair dealing rules in the UK; namely, the reporting of news events and, more importantly, incidental inclusion of music in the background.

In the United States, a few alternatives present themselves where a breach of copyright claim fails. An attorney might seek relief under a state’s “Right of Publicity” law, which provides protection of an artist’s image and the commercial value of an artist’s name. Another approach is a federal claim under the Lanham Act.

Putting aside the challenges of winning such claims, the elusive courtroom victory might not amount to much in practice. Typically politicians will not seek the prior permission of artists, songwriters and labels when deciding which music to use. The choice of song is far from accidental and often carefully chosen to portray an image or message to the public.

For lawyers (and artists), the problem is that as soon as a politician walks on stage while the song is being played, the association is born. No amount of injunctions, legal threats and cease-and-desists can turn back the clock and prevent the implied musical “endorsement.” Therefore, an artist might be able to stop a campaign from continuing to use his or her music, but by then, the damage might already be done.

That is not to say that there is no remedy available. Where John McCain used the Jackson Browne song ‘Running on Empty’ in a campaign advertisement without permission, Browne, a lifelong Democrat, filed a lawsuit under US copyright law. The case settled with payment of an undisclosed sum and a grovelling apology.

However, this was an easier case to win, based on a professionally-produced advertisement that was used in commercial advertising slots. In that case, express permission is certainly required for use of the song. A situation where a song is played in a venue and filmed by a news crew is not so straightforward. To help artists address this issue out of court, BMI has indicated that it has built into its license agreements a provision which allows a BMI songwriter or publisher to object to the use of their song(s) and, following such objection, BMI has the ability to exclude it from the blanket license agreement.

In light of the quandaries facing lawyers, some have gone to exceptional lengths to seek redress for their clients. Peter Paterno, a US music lawyer, took the unusual step of issuing an open letter to Senator Joe Walsh on behalf of his client, a guitarist in the Eagles. The letter poked fun at the Senator whilst reminding him of the various legal remedies available to the artist (for additional infringement cache, the Senator had changed the lyrics of the song in question to suit his campaign). Some might say that this has a better deterrent effect than initiating formal legal proceedings.

What lessons can be drawn from all this? Without legal means by which to enforce compliance with the artist’s wishes, a lawyer’s best advice may be that of a well-crafted, well-circulated post on social media. Likely to gain traction with the press, these statements may prove embarrassing enough for the politician concerned to desist. That said, this method has not had much traction on Trump who, it seems, is rather impervious to embarrassment.

Gregor Pryor and Steve Sessa are partners at Reed Smith based in London and LA respectively, and together head up the firm’s entertainment and media group