This month saw a highly publicised altercation between pop queen Rihanna and US President Trump. She called out the President for playing her popular hit song “Don’t Stop the Music” at his rally. In her cease-and-desist letter, Rihanna’s legal team specified that the idol’s consent should have been taken before playing her song at the rally. The issue, however, is more complicated than the simple matter of the artist’s consent to such usage and has been highly debated in the past. This is not the first time a US politician has faced claims of IP infringement for such usage. (In fact, here’s a lengthy list of famous artists who have publicly protested the use of their works by politicians such as Trump, Mitt Romney, Sarah Palin and many more.)
Status Quo in USA: Licensing Guidelines and Legal Claims Available
In USA, copyright of musical works are administered by Performing Rights Organisations (PROs) such as American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) etc. PROs acts as representatives for musical woks of various artists, songwriters and composers. Politicians need to obtain “public performance” licenses from the appropriate organisations to play the copyrighted musical works at their campaign. If these campaign events are properly licensed, politicians can use these works without taking the prior consent of the concerned artist and avoid copyright infringement suits. The following defences, however, can be availed by artists in such cases:
- Infringement of Right of Publicity: Right of publicity (also known as personality rights in most jurisdictions) is a common law right and is derived from the right to privacy. It protects the right of a famous individual to prevent commercial exploitation of his/her name, image or persona. This right is not provided by any US federal statute and hence differs from state to state. Since most state laws provide for First Amendment exceptions (which include political campaigning) in right of publicity statutes, past claims have mostly been ineffective.
- False Endorsement under Section 43(a) of Lanham Act: Playing songs of popular artists in rallies may often create a false impression of artist’s support for the politician and can result in a form of trademark infringement known as false endorsement. It is necessary to prove that the song is used in a “deceptive and misleading” manner so as to result in consumer confusion about the association or endorsement of the artist. Such usage is forbidden under Section 43 which prohibits usage which “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person“. The provision further prohibits dilution of trademarks (such as an artist’s or band’s name) by such unauthorised usage.
- Infringement of Moral Rights of Artist: Moral rights are non-economic, personal rights granted to the creator (who may not necessarily be the owner) of a work. These rights include the right of attribution, the right of integrity and the right to have a work published anonymously or pseudonymously. Although moral rights are only formally extended to works of visual art under the Visual Artists Rights Act in USA, there is a lot of debate about extending the scope of this protection to other works, including musical works. Artists may, hence, claim protection of their moral rights in the future in such cases of political usage.
Status Quo in India: Issue not Addressed Yet
In India, public performance licenses for using musical works at public venues need to be procured from Indian Performing Rights Society (IPRS) or Phonographic Performance Limited (PPL). Though Indian politicians don’t use musical works in their rallies as frequently as their American counterparts, politicians in Meghalaya, Kolkata etc. have been reported to use popular musical works to evoke emotions from the crowd and garner votes. Surprisingly, neither of the bodies have considered the possibility of such legal confrontations arising in the future. Neither IPRS nor PPL address political usage of musical compositions in their public performance licenses.
The legal claims against unauthorised use of musical compositions by politicians in USA have often proven to be ineffective in the past and hence, copyright holders remain dissatisfied with the current legal protection available to them. Usually, PROs in USA issue “all or nothing” licenses which grant permission to licensees to use numerous musical compositions under the PRO’s ambit for a fixed fee, thereby allowing politicians to bypass the procedure of gaining the consent of each individual copyright holder. It has been proposed that such licenses should be altered to include clauses which give the power to artists and songwriters to opt out from usage of their compositions at political venues. For example, BMI had introduced a Political Entities license which allows the concerned songwriters or publishers to withdraw any particular musical work from the license. Although such requests can only be made after the song is used, such licenses aid in preventing further usage of the copyrighted work. ASCAP’s guidelines also suggest that before availing a public performance license, politicians must gain the artist’s and/or the songwriter’s consent for using the copyrighted musical work.
Conclusion: A shift in current licensing norms and a shift in attitude towards artists’ and songwriters’ copyright in their musical compositions would both go a long way in preventing such legal confrontations. Also, a suitable licensing framework addressing such issues needs to be adopted in India to prevent similar controversies from cropping up in the future.
Image from here