GW IPEL Brief

Intellectual Property and Entertainment Law Brief

Copyright

The Allegedly Many Shapes of Water

The Shape of Water

The Shape of Water may have taken the coveted top prize at this year’s Academy Awards, but writer/director Guillermo del Toro’s celebrations may soon be hampered. Shortly before the awards ceremony, writers around the world spoke out against the film- one alleging a scene in the film is “strikingly similar” to a scene in his 1991 film, and two accusing del Toro and Associate Producer Daniel Kraus of outright plagiarizing their works.1 Of the two more serious charges, one involved a Dutch short film titled The Space Between Us, about a cleaning woman who breaks a fish-man out of captivity in a research center.2 However, the similarities between The Space Between Us and The Shape of Water end there; the short film takes place in what seems to be a dystopian future and centers around the main character’s sympathy for the creature, while The Shape of Water takes place in the Cold War-era, includes multiple subplots, and centers around the main character’s falling in love with the captive creature. Any lawsuits filed by the filmmakers behind the short film would likely be hindered by the classic idea/expression dichotomy: the two works’ general concepts are similar, but the multitude of differences and additions would surely constitute The Shape of Water as different expression. It’s possible the producers of the short film, the Netherlands Film Academy, agree, as they’ve dropped their complaint and stated that they believe the two films “have their own very different identities [. . .] and are not in any conceivable way interlinked or related.”3

The other allegation, however, involves a 1969 play by Pulitzer Prize-winning playwright Paul Zindel titled Let Me Hear You Whisper.4 Zindel’s estate has filed a complaint in U.S. District Court in the Central District of California, and lists some fairly damning similarities, such as: their settings in a Cold War-era military research facility, their non-speaking, female janitor protagonists, their scenes involving the protagonist feeding the creature and “dancing to records in front of it,” and their rescue mission scenes involving laundry hampers to prevent the creature’s killing.5 Del Toro denied ever hearing of the play, and stressed his historical transparency in disclosing his inspirations.6 Considering the works’ lengths and similarities are more analogous than is the case with the short film, this claim may be trickier to dispose of for del Toro.

However, The Shape of Water still has many differences from the play: the creature at hand is a river god instead of a dolphin, there’s an entire additional subplot involving the main character’s neighbor, and The Shape of Water has a “dramatically different” ending.7 The Zindel estate is not convinced though; the estate’s attorney explained “[i]f you look at what makes del Toro’s film great, it’s not the bad guy, it’s not the general, it’s not the cold war subplot, [. . .] it’s really this unlikely loving bond between an introverted janitorial cleaning lady, who is treated badly by her superiors, and forms, through communication and empathy, this deep, loving bond with this very intelligent creature, and that triumphs. And that’s all in the play.”8

Of course, del Toro has repeatedly mentioned the derivative core of the film- explaining it was his attempt to turn Creature From the Black Lagoon into a romance- but who could have imagined that a movie about falling in love with a fantastical, fish-creature would have so many alleged claimants?9 Then again, considering the differences between the works and the timing of the complaint, is this just another case of latching onto similarities at the peak of a runaway-hit’s success? Del Toro and the studio behind the film seem to think so, stating that the estate’s intentions behind the complaint to get the studio to quickly settle before the Academy Awards are “pretty transparent.”10 These cases do tend to settle out, but it would be very interesting to see how a court would decide such a close case. Until a court decides the merits of claims like the Zindel estate’s, what constitutes a rip-off versus parallel thinking will continue to be a matter of public opinion. Although litigation is rarely an enjoyable process, creators may be of the same viewpoint as del Toro, and find it to be “a relief to take something from the arena of opinion into the arena of fact and law.”11

  1. Eliza Berman, Everything to Know About the ‘Shape of Water’ Plagiarism Controversy, TIME (last updated Mar. 3, 2018, 10:30 AM), http://time.com/5170613/shape-of-water-plagiarism-controversy/.
  2. Id.
  3. Nick Evans, No, The Shape of Water Didn’t Plagiarize A Short Film, CinemaBlend (Feb. 2018), https://www.cinemablend.com/news/2300871/no-the-shape-of-water-didnt-plagiarize-a-short-film.
  4. Sam Levin, Exclusive: Playwright’s Estate Says The Shape of Water Used His Work Without Credit, The Guardian (Jan. 25, 2018, 5:30 PM), https://www.theguardian.com/film/2018/jan/25/shape-of-water-oscars-paul-zindel-similarities.
  5. See Berman, supra note 1.
  6. Colin Dwyer, ‘Shape Of Water’ Creators Sued Over Plagiarism Claims As Oscars Approach, NPR (last updated Feb. 23, 2018, 6:30 AM), https://www.npr.org/sections/thetwo-way/2018/02/22/587902480/shape-of-water-creators-sued-over-plagiarism-claims-as-oscars-approach.
  7. See Berman, supra note 1.
  8. Deanna Isaacs, The Shape of the ‘Shape of Water’ Plagiarism Lawsuit, Chi. Reader (Mar. 5, 2018, 4:36 PM), https://www.chicagoreader.com/Bleader/archives/2018/03/05/the-shape-of-the-shape-of-water-plagiarism-lawsuit.
  9. See id.
  10. See Dwyer, supra note 6.
  11. Id.

A Constellation of Infringement

                             Kendrick Lamar – Øyafestivalen 2013. Credit: Kim Erlandsen, NRK P3

British-Liberian artist Lina Viktor is suing Kendrick Lamar, SZA, and Top Dawg Entertainment (“TDE”) for using some of her paintings in the music video for “All The Stars” without her permission.1 In particular, Viktor claims that the video for the song from the Black Panther soundtrack violated her copyright in “Constellations,” a series of paintings featuring patterned artworks made with 24-karat gold.2

The allegations first arose when Viktor’s lawyer sent a letter to Anthony Tiffith, mentor to Kendrick Lamar and label head at TDE.3 The letter made the label aware of the alleged “willful and egregious” infringement, and requested a discussion of “a resolution of all her claims, consisting at a minimum of a public apology for the unauthorized use and a license fee.”4

In addition, the letter also claimed that the Black Panther creators also approached Viktor twice about using her work.5 The first time was in November 2016, when set decorator Jay Hart requested to use one of the “Constellations” paintings in Black Panther itself.6 According to the complaint, Viktor had found that the “financial and artistic terms offered for her collaboration were not acceptable.”7 In December 2017, a representative of DDA, the PR firm working on behalf of Marvel and Disney, contacted Viktor with the idea of using her artwork in promotional material for the film.8 The artist had once again refused, due to DDA demanding that she “enter into an exclusive license for the proposed works, thereby foregoing all artistic control.”9 Viktor found the licensing agreement to be restrictive, in part because the “Constellation” series would be appearing in the Armory Show the following March, marking a major milestone in her career.10

Viktor first became aware of the alleged infringement in February, when friends of the artist watched the “All The Stars” video upon its release and contacted her, believing she had licensed her work.11 Viktor’s friends weren’t the only ones who thought her influence was apparent in the visuals. Fans took to social media to point out the differences, and an article on the website OkayAfrica states that “[t]he work and influence of British-Liberian artist Lina Iris Victor can be clearly spotted.”12

Viktor recently initiated a lawsuit against TDE and the two artists featured in the song, asking for damages and an injunction.13 In the complaint, the artist claims that the video for “All The Stars” attempts to imitate the “unique look and feel” of her works, but also uses “specific copyrightable elements” such as “stylized motifs of mythical animals, gilded geometric forms on a black background, and distinctively textured areas and patterns.”14 The complaint goes on to acknowledge the mixed message that the unauthorized use of her work sends. While Black Panther has become a worldwide phenomenon, hailed by many for its empowering representations of race and gender, according to Viktor, “in a bitter irony, the Defendants have ignored the wishes of the Artist, herself a Black African woman, whose life’s work is founded on an examination of the political and historical preconceptions of ‘blackness,’ liberation and womanhood.”15 The complaint, which can be viewed here, also takes shots specifically at Lamar, “the public face of the Infringing Video.”16 Viktor’s attorney is “confident that Ms. Viktor will prevail,” while the artist herself wrote in a statement on Facebook, “Feel reassured – I am seeking justice.”17The portion of the video that prompted the legal action begins at about 02:59, at which point Kendrick Lamar is seen walking through a set covered in gold patterns.18 About 19 seconds of the video are alleged to be infringing.19 Currently, the “All The Stars” music video has over 71 million views on YouTube.20

  1. See Winston Cook-Wilson, Kendrick Lamar and SZA Sued by Artist Over “All the Stars” Video, Spin (Feb. 21, 2018), https://www.spin.com/2018/02/kendrick-lamar-sza-all-the-stars-lawsuit/.
  2. See Robin Pogrebin, Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work, N.Y. Times (Feb. 11, 2018), https://www.nytimes.com/2018/02/11/arts/black-panther-kendrick-lamar-lina-iris-viktor.html?partner=rss&emc=rss&smid=tw-nytimes&smtyp=cur.
  3. Id.
  4. Id.
  5. See id.
  6. See Isaac Kaplan, Artist Sues Kendrick Lamar, Alleging Black Panther Music Video Copied Her Work, Artsy (Feb. 21, 2018), https://www.artsy.net/article/artsy-editorial-artist-sues-kendrick-lamar-alleging-black-panther-music-video-copied-work.
  7. Id.
  8. Id.
  9. See Pogrebin, supra note 2.
  10. See Kaplan, supra note 6.
  11. See Kaplan, supra note 6; Pogrebin, supra note 2.
  12. Kam Tambini & Antoinette Isama, Stop What You’re Doing and Watch Kendrick Lamar & SZA’s Incredible Video For the ‘Black Panther’ Soundtrack, OkayAfrica (Feb. 6, 2018), http://www.okayafrica.com/kendrick-lamar-black-panther-sza-all-the-stars-video/; see Eric Skelton, Artist Files Copyright Lawsuit Over Kendrick Lamar and SZA’s “All the Stars” Video, Complex (Feb. 20, 2018), http://www.complex.com/music/2018/02/artist-files-copyright-lawsuit-over-all-the-stars-video-kendrick-lamar-sza.
  13. See Kendrick Lamar, SZA Sued by Artist: You Jacked My Work for ‘Black Panther’ Vid!!!, TMZ (Feb. 20, 2018), https://www.tmz.com/2018/02/20/kendrick-lamar-sza-sued-black-panther-music-vid-artwork/.
  14. Id.
  15. See Kaplan, supra note 6.
  16. See Braudie Blais-Billie, Kendrick and SZA Sued Over Black Panther Video, Pitchfork (Feb. 21, 2018), https://pitchfork.com/news/kendrick-and-sza-sued-over-black-panther-video/.
  17. Id.
  18. See Kaplan, supra note 6.
  19. See id.
  20. See Kendrick Lamar, SZA – All The Stars, YouTube (Feb. 6, 2018), https://www.youtube.com/watch?v=JQbjS0_ZfJ0 (last visited Mar. 16, 2018).

Bipartisan Music Licensing Legislation Looks to Help Music Industry Clean Up its Act

                       Architect of the Capitol, The Western Front of the United States Capitol, 1997.

For years, the music industry has dealt with music licensing issues, largely due to technological developments such as streaming radio and digital downloads, which have created new challenges for providing the appropriate levels of compensation for songwriters and publishers. Now, after years of discussion and lobbying efforts, a bipartisan bill may provide a much-needed solution.

Introduced in the Senate in late January, the Music Modernization Act (“MMA”) – sponsored by Senators Orrin Hatch (R-UT), Lamar Alexander (R-TN), and Sheldon Whitehouse (D-RI), and co-sponsored by Senators Dick Durbin (D-IL), Bob Corker (R-TN), Chris Coons (D-DE), Johnny Isakson (R-GA), and Doug Jones (D-AL) – proposes several changes to Section 115 of the Copyright Act so that rights holders, including composers and publishers, can be fairly compensated.1 The MMA seeks to create “a blanket mechanical licensing system,” elect a new agency to administer it, make changes to royalty rates, and modify the way royalty rate disputes are handled.2

By creating a blanket license, streaming service companies like Spotify and Apple Music would no longer have to go through the hurdles of finding out which composition underlies a specific sound recording in order to pay that composer and/or music publisher for use of their work.3 The new music licensing collective will be tasked with matching recordings to compositions, thus paying composers and publishers accordingly, and maintaining a database for use by the streaming services companies.4 In addition to proposing that royalty rate disputes be rotated to various federal judges in the Southern District of New York, as opposed to the same judicial panel for ASCAP and BMI royalty determination cases,5 the MMA also allows for rates to be applied using a free-market, “willing buyer/willing seller” standard rather than the current standard that doesn’t reflect market value.6 Collectively, this would pave the way for better rates for songwriters.

While many have lauded this as a step in the right direction – including the National Music Publishers Association, the Recording Industry Association of America (“RIAA”), and performance rights organizations (“PROs”) like ASCAP and BMI,7 others believe that many of the past problems with licensing, and those affected by them, will be overlooked. Things weren’t looking good for the Act’s progress due to hold-outs from groups such the National Association of Broadcasters (“NAB”). The NAB was concerned with the MMA’s repeal of Section 114(i) of the Copyright Act, which provides that the rates which record labels receive for sound recording performances can’t be used as evidence during rate determination trials for public performance of musical works.8 However, those concerns were alleviated and the NAB is now in support of the MMA because the repeal of section 114(i) will be limited so that it will not apply to terrestrial radio and simulcasts.9

Despite the NAB and others coming around, giving the MMA almost universal support from members of the music industry, questions remain about whether composers will be appropriately paid when their work is used. One concern is a potential discrepancy between what songwriters receive compared to publishers.10 Under the MMA, the licensing collective that will distribute royalties will give any unmatched royalties to music publishers on a market share basis.11 However, most music contracts (other than those of big stars) contain exclusion clauses that don’t allow writers to collect money obtained by publishers unless the funds are specifically tied to the writer’s work.12  Therefore, only prominent artists will receive a portion of those funds, while publishers effectively receive a windfall.13 Another concern is that the MMA’s creation of a licensing collective could result in the end of PROs like ASCAP and BMI, in favor of a one-stop licensing entity, which would end many private contracts between songwriters and PROs.14

However, as shown by its bipartisan efforts and wide support, the MMA appears to be a big step in the right direction for music licensing. The MMA hopes to provide major changes to deal with the problems of compensation to songwriters and publishers while continuing to adapt to new technologies and services that play a major role in music. As technologies continue to emerge, other changes may need to be made. However, where previous attempts, such as the Transparency in Music Licensing and Ownership Act, were not as successful,15 the MMA’s centralized approach to mechanical licenses shows promise for streamlining distribution of royalties and providing a balance between paying composers and publishers for use of their works and creating an efficient and profitable environment for streaming services companies to continuing thriving.

  1. Ed Christman, Senate Moves Forward on Music Modernization Act, Billboard (Jan. 24, 2018), https://www.billboard.com/articles/business/8096006/senate-bill-music-modernization-act-licensing-reactions.
  2. Bruce Houghton, What Is The Music Modernization Act and Who Supports It?, Hyperbot (Jan. 29, 2018), http://www.hypebot.com/hypebot/2018/01/what-is-the-music-modernization-act-and-who-supports-it.html.
  3. Bill Rosenblatt, Music Modernization Act Proposes Single Solution to Mechanical Licensing Problem, Copyright & Tech. (Dec. 30, 2017), https://copyrightandtechnology.com/2017/12/30/music-modernization-act-proposes-single-solution-to-mechanical-licensing-problem/.
  4. Id.
  5. Christman, supra note 2.
  6. Congressman Ted Lieu, Overview of the Music Modernization Act, https://lieu.house.gov/sites/lieu.house.gov/files/Overview%20of%20the%20Music%20Modernization%20Act.pdf.
  7. Rosenblatt, supra note 4.
  8. Ed Christman, National Association of Broadcasters Signs On to Support Music Modernization Act, Billboard (Jan. 26, 2018), https://www.billboard.com/articles/business/8096572/national-association-broadcasters-music-modernization-act.
  9. Id.
  10. Wallace Collins, Beware Songwriters: The Music Modernization Act Sets the Stage for a Brutal Songwriter-Publisher Tug-Of-War, Digital Music News (Feb. 1, 2018), https://www.digitalmusicnews.com/2018/02/01/songwriters-music-modernization-act/.
  11. Id.
  12. Id.
  13. Id.
  14. Chris Castle, Does the Music Modernization Act Foreshadow the Decline of Performance Rights Societies in the US?, Music Tech. Pol’y (Jan. 23, 2018), https://musictechpolicy.com/2018/01/23/does-the-music-modernization-act-foreshadow-the-decline-of-performance-rights-socities-in-the-us/.
  15. Rosenblatt, supra note 4.

That Sounds Familiar . . . Another Hit Song gets Hit with Copyright Infringement Suit

Guitar, Bag, Bench

       Infringement or Independent Creation?

The New Year isn’t starting off so well for a few big name musicians. Two Australian songwriters filed a lawsuit in New York on January 10th against Ed Sheeran, Tim McGraw, Faith Hill, and others for copyright infringement in the new hit duet “The Rest of Our Life.”1 Plaintiffs claim that the duet is so substantially similar in music, lyrics, and theme to their 2014 song “When I Found You” that some sections are a “note-by-note” copy and independent creation is “implausible.”2 They are seeking a permanent injunction against the use of the song as well as $5 million in monetary damages.3

As part of a copyright infringement claim, the plaintiffs must show that the defendants had some form of access to the infringed song and thus was not independently created. The plaintiffs in this case have a fairly compelling story for that. The boyfriend of the “When I Found You” performer is a Sony executive based in Australia, and Sony/ATV is Ed Sheeran’s publisher.4 The lawsuit claims that the Sony executive had noticed the similarities between the songs and had said nothing, and had possibly given the defendants access to the Australian song when he presented the song to Sony Music to help his girlfriend gain exposure.5

“The Rest of Our Life” has 9.6 million YouTube views and over 8 million streams on Spotify.6 Comparatively, as of few days ago, sources were saying “When I Found You” had just over 58,000 views on YouTube.7 Of course, its popularity has increased due to the lawsuit, with the video now having over 500,000 views as of this post.8

This story of a big music name stealing the work of a lesser known or older artist is certainly not new. One of the most notable is the “Blurred Lines” case, which was filed by the same music industry attorney as this case and involved the copying of Marvin Gaye’s 1977 “Gotta Give it Up” by Robin Thicke and Pharrell Williams for their hit song.9 Plaintiffs won the case with a $5.3 million judgment against the artists.10 Of course, there are some situations where the question of copying is clearly overstated, such as R&B singer Jesse Graham claiming Taylor Swift stole his lyrics “haters gonna hate” for “Shake it Off,” and suing for $42 million (the judge wrote a hilarious dismissal of the claim using many of T Swift’s lyrics in her opinion).11

Looking beyond these cases, I think the question is whether we will continue to see the rise of music copyright infringement claims. After the substantial judgment rendered in the “Blurred Lines” case in 2015, there has already been a significant increase in such disputes.12 Several well-known artists have faced similar claims, including Sam Smith and Bruno Mars, with many of them settling outside of court.13 Ed Sheeran himself actually settled in another copyright case regarding his hit song “Photograph” by adding the plaintiffs’ names as coauthors.14 And, in regards to proving access, with the popularity of aspiring artists posting their work on platforms like YouTube, how easy will it be for someone to prove that another musician heard their song and ripped it off? It seems as though some artists may have to face the music and pay up.

  1. Carey v. Sheeran, 1:18-cv-00214 (S.D.N.Y. filed Jan. 10, 2018).
  2. Bill Donahue, Ed Sheeran, Tim McGraw Stole Hit Song, Suit Says, Law360 (Jan. 11, 2018, 12:31 PM), https://www.law360.com/articles/1001065/ed-sheeran-tim-mcgraw-stole-hit-song-suit-says.
  3. Jem Aswad, Tim McGraw-Faith Hill Song Co-Written by Ed Sheeran Hit with Lawsuit, Variety (Jan. 11, 2018, 8:22 AM), http://variety.com/2018/biz/news/tim-mcgraw-faith-hill-song-co-written-by-ed-sheeran-hit-with-lawsuit-that-claims-blatant-copying-1202661143/.
  4. Nate Rau, Ed Sheeran, Tim McGraw and Faith Hill Named in Lawsuit over “The Rest of Our Life”, Tennessean (Jan. 10, 2018, 9:15 PM), https://www.tennessean.com/story/money/2018/01/10/ed-sheeran-tim-mcgraw-and-faith-hill-sued-over-rest-our-life/1022567001/.
  5. Id.
  6. Id.
  7. Id.
  8. Jasmine Rae, Jasmine Rae – “When I Found You (Official Music Video), YouTube (Nov. 17, 2017), https://www.youtube.com/watch?v=L-T-aSHM0fc.
  9. Eriq Gardner, Appeals Court Skeptical of Overturning Marvin Gaye Family’s “Blurred Lines” Victory, Hollywood Rep. (Oct. 6, 2017, 12:49 PM), https://www.hollywoodreporter.com/thr-esq/appeals-court-skeptical-overturning-marvin-gaye-familys-blurred-lines-victory-1046549.
  10. Id.
  11. Mahita Gajanan, Judge Borrows Taylor Swift Lyrics When Shaking Off Plagiarism Suit, The Guardian (Nov. 12, 2015), https://www.theguardian.com/music/2015/nov/12/taylor-swift-plagiarism-lawsuit-dismissed-shake-it-off.
  12. Gardner, supra note 9.
  13. Id.
  14. Id.

Guerilla Radio: Political Campaigns and Copyrighted Music

Eminem Performing in Munich, Germany – Oct. 31, 1999

On October 25, 2017, the High Court of New Zealand issued a ruling in the much-publicized dispute between Eminem and New Zealand’s National Party, finding that the Party’s 2014 commercial infringed Eminem’s copyright on his hit “Lose Yourself.”1 The infringing commercial featured a “soundalike” recording of the rapper’s song which differed very slightly from the original and was essentially a re-recording of exactly the same parts as the original.2 The dispute garnered international attention and was even a featured segment on Last Week Tonight with John Oliver, which, unsurprisingly, predicted that Eminem would likely be successful in the suit.3

While this lawsuit was a particularly entertaining example (watching barristers awkwardly listen to “Lose Yourself” in a courtroom was admittedly fantastic), it raises a larger question of the use of copyrighted music by politicians and political parties. While the Eminem case arose in New Zealand, most of these disputes that Americans are familiar with arise during campaign season for presidential elections. Notable examples from the past few years include protests by Adele over Donald Trump’s use of her music, Heart and the Foo Fighters’ disapproval of John McCain’s use of “Barracuda” and “My Hero,” respectively, and the complaints by Silversun Pickups against Mitt Romney’s use of their music.4 These disputes go much further back, however, with one of the first prominent examples being Bruce Springsteen’s dispute with Ronald Reagan regarding his use of “Born in the U.S.A.” during campaign rallies.5

Given the disputes that seem to inevitably come up in every election season, a few important questions arise: (1) Are politicians violating copyright laws by not obtaining the express permission of the original artists?; (2) What rights do artists have against the politicians that use their music?; and, (3) Is it reasonable to expect every song in every campaign rally to be cleared with the original artist?

In answering these questions, the best place to start is the guidelines issued by the American Society of Composers, Authors and Publishers (“ASCAP”) for using music in political campaigns.6 This brief, two-page FAQ first insists that political campaigns contact the song’s publisher (and possibly the record label as well) and obtain explicit licenses to use the songs for political campaigns.7 The guidelines also make clear that the standard “public performance” licenses that are held by arenas, bars, convention centers, and other public venues actually exclude use by “conventions, expositions, and campaign events.”8 As extra security, ASCAP recommends that the campaign itself obtain a “public performance” license if it will be stopping at multiple venues.9 Lastly, the guidelines indicate that even if a campaign protects itself and doesn’t violate copyright, it may still be exposed to three different legal theories by unhappy artists: (1) a “Right of Publicity” violation under state law, (2) Lanham Act violations for dilution or infringement of an artist’s trademarks, and (3) and “False Endorsement” claims.10 Ultimately, campaigns should simply get express permission from the artist if they want to guarantee protection from these other claims.11 Thus, while politicians will not be on the wrong side of copyright law if they have a “blanket” license from an organization like ASCAP, express permission may be the safest bet.

It should be noted, however, that these rules/guidelines do not apply when the songs are used in a television or online video commercial for the campaign.12 John McCain learned this lesson the hard way upon being sued over the use of a Jackson Browne song in an attack ad against Barrack Obama in 2008 (the parties ultimately settled and McCain made a public apology for his use of the song).13 In the context of online videos, platforms such as YouTube typically have their own copyright “net” which catches unapproved uses of copyrighted songs in videos, so the original artist often never needs to get involved in a legal capacity.14

Yet, is this really the best system? If copyright law is insufficient to guard an artist’s moral objections to the use of their work, what can be changed to protect artists and not cripple the ability of politicians to use music at their events?

From the perspective of artists, the best solution seems to be simply eliminating the use of any “blanket” license by a political campaign and force them to obtain permission to use each individual song from the music publisher and record label.15 Proponents of this solution suggest that the “balancing” of interests behind blanket licenses simply doesn’t make sense in the political arena.16 Specifically, blanket licenses are meant to promote the free and spontaneous use of music by artists and others in public places without concern of copyright infringement (such as a bar playing Top 40 songs every night). However, in the context of a political campaign, the moral and creative interests of the original artist would seem to outweigh the interest of a political candidate to be able to impulsively switch songs at the last minute before a rally without an explicit license.17 This holds especially true because under current law, the only method for an artist to guarantee that a politician may not use legally use their music is to withdraw from the three performing rights organizations (ASCAP, BMI, SESAC).18 However, this solution has its own drawbacks, since this would put all venues playing their music at risk of copyright infringement, and venues would likely choose to not play the artist’s songs rather than obtain a specific license.

As with many issues, a congressional amendment to Copyright law specific to politicians would be the best solution. However, given the current pace of Congress and the low probability that politicians would volunteer to cripple their ability to use these songs, the most viable solution for artist-friendly reform is for the performing rights organizations to simply update their rules and regulations regarding blanket licenses. This could come in the form of simply barring campaigns’ ability to purchase blanket licenses, or a method by which artists could remove their songs from a campaign-specific license.19 However, the second solution places the onus on the artist for each individual politician or party and the administration of such a system would likely be far too complicated to implement.

The burden should be placed on the politician since they are “profiting” from the use of the song, but banning blanket licenses outright also might not be the best answer. Instead, the best solution might simply be streamlining the process by which a politician can ask for permission for a song. With the prevalence of shared playlists, campaigns could simply submit a proposed list of songs into an ASCAP/BMI/SESAC sponsored system which would alert the artist to the request, who would then be able to approve or deny. Under such a system, failure to respond could amount to a rejection, in order to protect an artist who might inadvertently fail to reject the use of a particular song. Given the evolution of social media and shared music, this solution might be the most cost-effective and simple method to protect both politicians and artists from getting ensnared in costly litigation or be embarrassed by unauthorized use.

  1. Eleanor Ainge Roy, Eminem Wins $600,000 After New Zealand Political Party Breached His Copyright, The Guardian (Oct. 25, 2017), https://www.theguardian.com/music/2017/oct/25/eminem-wins-600000-after-new-zealand-political-party-breached-his-copyright.
  2. Id.
  3. May 7, 2017, Last Week Tonight, HBO (May 7, 2017).
  4. See Marc Hogan, Here’s How Candidates Can Use Songs in Their Campaigns, Even If Songwriters Don’t Like It, Pitchfork (Apr. 13, 2016), https://pitchfork.com/thepitch/1098-heres-how-candidates-can-use-songs-in-their-campaigns-even-if-songwriters-dont-like-it/.
  5. Id.
  6. ASCAP, Using Music in Political Campaigns: What You Should Know, ASCAP, https://www.ascap.com/-/media/files/pdf/advocacy-legislation/political_campaign.pdf (last visited Nov. 3, 2017).
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. Peggy Keene, The Use of Popular Music in Political Campaigns, Klemchuk LLP (Aug. 26, 2016), http://www.klemchuk.com/use-popular-music-campaigns/.
  13. Id.
  14. Id.
  15. Lauren M. Bilasz, Copyrights, Campaigns, and the Collective Administration of Performance Rights: A Call to End Blanket Licensing of Political Events, 32 Cardozo L. Rev. 305, 326 (2010).
  16. Id.
  17. Id.
  18. Id. at 327.
  19. Id. at 326-27.