[Guest post] Does election rhyme with copyright protection?

Can you use someone’s song without their permission, moreover in the context of a political event? The answer seems to be a straightforward one. Yet, many politicians continue behaving like that. Our Katfriends at Gorrissen Federspiel in Copenhagen – Hanne Kirk, Jakob Plesner Mathiasen and Paul Sina – comment. Here’s what they write:

Does election rhyme with copyright protection?

by Hanne Kirk, Jakob Plesner Mathiasen and Paul Sina

“It’s that time of year. Campaign season is here. You’ll wave and point and make your speeches while balloons fall everywhere, but we noticed something’s wrong and it’s gone on way too long. Soo we’re asking you right now - Stop using our song.”

Besides being lyrics to an incredibly catchy tune, the words above mark a clear statement from musicians from all around the world. The song that is performed by a star-studded cast, featuring Josh Groban, Sheryl Crow, Cyndi Lauper, John Mellencamp, Dan Reynolds, Usher, Michael Bolton and Heart has one simple requirement - stop using our song … without our permission.

Seemingly, the message needs to be cut to the chase, since politicians from everywhere keep on using artists’ music without any permission from them. So, let’s just get the rules straight in this, apparently, complex area of law.

Dear Katreaders, hold on tight and brace yourselves for a very technical and legal analysis of the legal use of copyright works in political campaigns.

Just kidding.

Take it easy and unbuckle whatever you had strapped yourself to. Truth be told, the answer is simple – use of a copyright work requires its rightholder’s permission, unless an exception is applicable. Politicians keep using the “fair use” defence, arguing that the political use of the works serves a noncommercial purpose or falls within the parody exception. While there are indeed numbers of exceptions to the general rule of authorization, case law of recent decades has shown that musicians have succeeded in countless instances of unauthorized use of musical works in political campaigns.

Let us dive into some of the cases from Europe, Australia and USA - beginning with the home country of musicians like Lukas Graham and Outlandish, the Kingdom of Denmark.

The Danish parliamentary elections have recently come to an end and it seems that the Danish politicians, rather exceptionally, have behaved reasonably well, at least when it comes to copyright. However, we must not travel further back in time than the year 2012 in order to find two copyright infringements committed by Danish political parties. The Danish liberal party “Venstre” had used Laid Back’s hit “Sunshine Reggae” in their campaign. In their defence they argued that the use of the song fell within the parody exception and was protected by freedom of speech. The District Court rejected Venstre’s pleas and the party was ordered to pay DKK 100,000 (€ 13.500) in damages.

Less than eleven months passed, before the Danish conservative party “Konservative Folkeparti” committed almost exactly the same infringement. Within that timeframe the legal landscape had not changed. Accordingly, the court once again rejected the applicability of the parody exception.

Moving down approximately 1,225 kilometers to the southwest, we find ourselves at Élysée Palace, in the chambers of the French president. Thirteen years ago, in 2009, when the former French president Nicolas Sarkozy had his daily routine at the palace, his party UMP (Union for Popular Movement) used MGMT’s song “Kids” in their campaign. Ironically, at the same time, Sarkozy pushed politically to fight internet piracy. While UPM and MGMT settled for around $39,000, the French lower house meanwhile approved some of the most restrictive anti-online piracy legislation in the world.

After a 24-hour flight and a stopover in Bangkok, we have landed about 149 longitudes east in Sydney. Businessman and politician Clive Palmer was sued by Universal Music for using the Twisted Sisters’ famous rock anthem “We’re Not Gonna Take It” for a political advertisement.

The founder of the United Australia Party had changed the words from “We’re not gonna take it” to “Australia’s not gonna cop it”. Listen to a side-by-side comparison of the two songs here.

While listening to the comparison, it is not unlikely that you may find yourself agreeing with Judge Justice Katzmann, stating that it was “ludicrous” and “fanciful” to claim that Clive Palmer’s song “Australia’s Not Gonna Cop It” was created independently of the Twisted Sister anthem. The compensation amounted to a total of $1,5 million, even though Mr. Palmer alleged that the song did not infringe the Twisted Sisters copyright, since he created the lyricism all by himself “deep in contemplation” in the early hours of one morning in September 2018.

Finally, carrying on with the infringement-experts situated north from Mexico and south from Canada, bringing us to the United States of America. Ronald Reagan, George H.W. Bush, Bob Dole, Mike Huckabee, Barack Obama, Donald Trump, Mitt Romney, Sarah Palin and John McCain. The list of U.S. politicians that have been in conflict with musicians’ copyrights is long and far from exhaustive.

It is very different how musicians are dealing with the situation. Some go to court, some use it as a political platform to voice their opinion, others simply call on politicians to stop using their songs and some do like the Dropkick Murphys. Once the rock band heard that the former governor of Wisconsin Scott Walker used their song during his speech, they promptly replied on Twitter: “@ScottWalker @GovWalker please stop using our music in any way…we literally hate you!!! Love, Dropkick Murphys”.

Fortunately, most politicians usually stop using the songs when pointed out that the musicians do not accept the use thereof. However, some politicians defy the call and continue using the songs. An example of this is Queen’s world-famous song “We are the Champions”, which has been repeatedly used by the Republican party in the US, despite the differences between the ‘average’ Republican voter and Freddie Mercury and his lifestyle. Pat Buchanan was the first to use the song in 1992, followed by Mitt Romney in 2012 and, most recently, we saw Donald Trump take the stage at the Republican National Convention while the speakers were blasting “We are the Champions”, although Queen guitarist Brian May had already refused its use.

Charlie Crist, member of the U.S. House of Representatives, used Talking Heads’ single “Road to Nowhere” in his campaign against Marco Rubio in 2010. Like Survivor's Frankie Sullivan, David Byrne (lead vocal of Talking Heads) is one of the few artists who has actually sued a politician for the use of their songs. They ended up reaching an undisclosed settlement and Charlie publicly apologized for the unauthorized use in a video that he posted on YouTube.

Sam Moore somehow managed to turn the unauthorized use of his music into something beneficial. After calling on Obama to stop using his song “Hold On, I’m Comin”, the Obama campaign apologized and even invited Sam Moore to perform at the inaugural ball for the then newly elected president, alongside famous artists like Elvis Castello and Sting.

So dear politicians, stick to what you are best at (politics) and make sure you get a licence when you use music. And finally one more advice – please consider listening to the content of the song, otherwise you might end up like Ronald Reagan playing “Born in the USA”, unbeknownst to him that the song is about the Vietnam War.