Entertainment & Media Law Signal : Canadian Entertainment Lawyers for Licensing, Intellectual Property & New Media Matters

News reports that Rush (the band) have demanded that Rush (the Limbaugh) desist from using the band's music in his radio broadcasts have re-raised an issue we have considered here at the Signal on few different occasions.  The story appears to have been broken by US blogger Bob Cesca (EXCLUSIVE: Rush Pulls Music from Limbaugh Show) and Cesca also provides a copy of the "cease and desist" letter sent by Rush's management company to The Rush Limbaugh Show.  According to Cesca, The Rush Limbaugh Show had used various Rush songs as "bumpers out of ... commercial breaks" and a Rush song had been playing while Limbaugh had made various controversial statements about a woman named Sandra Fluke.

The relevant portions of the letter read as follows:

... Rush Limbaugh, Premiere Radio Networks and The Rush Limbaugh Show have been using Rush’s recorded music as part of what is essentially a political broadcast.

The use of Rush’s music in this way is an infringement of Rush’s copyrights and trademarks. The public performance of Rush’s music is not licensed for political purposes and any such use is in breach of public performance licenses and constitutes copyright infringement. There are civil and criminal remedies for copyright infringement, including statutory damages and fines.
(see sections 501-513 of Title 17 of the United States Code http://www.copyright.gov/title17/92chap5.html)

In addition, the use of Rush’s music in this manner implies an endorsement of the views expressed and products advertised on the show, and is in breach of not only copyright and trademark rights, but also, of section 51 of the New York Civil Rights Law (excerpt attached).

Long-time readers of this blog will recall that Rush has appeared here before in somewhat similar circumstances: nearly two years ago Rush demanded that US politician Rand Paul stop using their music at public appearances and stop quoting lyrics in speeches (see: Signal coverage from June 2010; Ben Sheffner's discussion of the matter; and the May 2010 cease and desist letter).

So - can Rush (the band) prevent Rush (the Limbaugh) (or any other radio show) from using its music on a radio broadcast?  (I'm going to focus on the copyright issues here, since those are of broader application, rather than the New York State-specific right of publicity claims or the trade-mark claims.)

As discussed in our earlier post (Canadian Copyright and Campaigns - Moral Rights Edition) the band might have an easier time of things trying to stop a Canadian political radio show from using their music: in Canada they (i.e., the composers of the songs in question) could try to assert their moral rights in the songs, found in Sections 14.1 and 28.2 of the Copyright Act (Canada).  Such a claim would involve arguing that Limbaugh's use of their compositions constitutes "use in association with a product, service, cause or institution" which "prejudices" their honour or reputation".  They might face some hurdles in demonstrating the first part of that formulation: it's not immediately clear that what Limbaugh does on his radio show constitutes a "cause", though one could make a relatively cogent argument that it falls within the borders of "product" or "service".  However, Limbaugh's show is produced and broadcast in the US, where moral rights do not apply to musical compositions.

Is there some other basis on which Rush could be asserting their infringement of copyright claim?  The letter from Rush's lawyer states "public performance of Rush’s music is not licensed for political purposes and any such use is in breach of public performance licenses".  Radio stations in the US obtain public performance licenses for compositions from ASCAP, BMI and SESAC.  To the best of my knowledge, none of their standard licenses (ASCAP;BMI; SESAC) include any carve-out for "political" uses.  Nor does the standard SOCAN license (on the basis that Rush is Canadian, I'm guessing that their public performance rights are granted to SOCAN, which in turn has an affiliation agreement with each of the US performing rights organizations (PROs), and Rush will have chosen to affiliate with one of them - based on Ben Sheffner's blog, at least some of their compositions are licensed via SESAC).  It's possible, though it would be to my knowledge a unique situation, that Rush has somehow carved out "political" uses from its grant of rights to SOCAN (and therefore the US PRO). 

We should also be sure to draw a distinction between the terms of a "music publishing" agreement (which composers enter into with a music publisher such as EMI Music Publishing or Warner/Chappell) and an agreement with a PRO.  While music publishing agreements regularly contain a carve-out requiring the composer's express permission for certain types of licenses, such as licenses for political activities, certain types of merchandise (e.g., firearms, alcohol, hygiene products, etc.), as mentioned above, it is almost unheard of for a grant of rights to a PRO to contain any similar sort of restriction.  Radio stations generally don't obtain licenses from music publishers, they obtain licenses from PROs. 

Based on the foregoing, the best copyright-based argument that Rush could make to prevent the use of its songs by Rush Limbaugh must originate somewhere other than in a violation of the PRO performing licenses.

Here's a possible way for a band like Rush to frame their argument: while a public performance license might confer the right on a radio station to publicly perform compositions, they can't function to confer a right on a producer to "synch" or otherwise use a composition in connection with a production created by someone who does not have a public performance license.  While a radio station's in-house production team might be able to "shelter" under the public performance license obtained by the station, an independently-produced show, such as Limbaugh's, argubaly needs a separate set of licenses (from the owners of the publishing rights in the composition and possibly the rights in the sound recording) in order to clear the rights in the show they produce which they then "deliver" to the radio station for broadcast.  It's possible that The Rush Limbaugh Show might have its own ASCAP, BMI and SESAC licenses which it has obtained.  There's also the possibility that Limbaugh relies on a "fair use" argument if the excerpts of music which he uses are sufficiently short.  But for music which is prominently featured in the broadcast, in the absence of TRLS having its own licenses in place, there may be a plausible claim of copyright infringement to be made.  Such an argument would be much stronger in a case where a radio production company produces a recorded show which it then provides to broadcasters for transmission - it might be a little tougher to make that argument where a show is broadcast live (as the Limbaugh show appears to be).

The foregoing argument is, of course, speculative - no court that I'm aware of, whether in Canada or the US, has considered a similar argument.  The consensus among US attorneys appears to be that an artist cannot legally prevent a radio show from using music if that show (or the station on which it is broadcast) has obtained the necessary PRO license (see, from Rolling Stone magazine, Can Rush, Peter Gabriel Legally Order Limbaugh to Cease Using Their Songs?).  That doesn't mean, however, that an artist has no ability to prevent the usage: public declarations of disapproval can serve as moral suasion, inciting (or "shaming") the makers of a radio show to drop the songs in question.  Depending on how the music is used in a particular show (e.g., if it is used as a theme song for a show, or is constantly played on the show to the extent that it becomes "identified" with the show in some manner) there might be some kind of trade-mark or right of publicity claim which could be advanced (which would be somewhat similar to the Canadian "moral rights" claim).  And claims backed by assertions of legal rights might persuade the recipient to stop the usage simply because they don't have the time, energy or money to contest the legal claim.

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Canadian entertainment lawyers are forced to look on in wonderment (and envy?) at the plethora of entertainment law-related legal disputes which arise in the United States.  Now (finally!) one with a Canadian angle - Gingrich ordered to stop using Heavy song

U.S. presidential hopeful Newt Gingrich's campaign is striking a sour note with a Montreal record label.

Third Side Music has sent Gingrich's team a cease and desist order demanding they stop using the song "How You Like Me Now" at campaign events.

The song is by the British band The Heavy, and the Third Side record label holds the rights to it.

In recent years, particularly in the 2008 US presidential campaign, assertions of copyright intended to stop politicians from making use of songs reached such a fever pitch that it was one of the primary topics of discussion on Ben Sheffner's late, lamented blog (from which this post swiped its name) Copyrights & Campaigns, and the US Center for Democracy and Technology published a 2010 report entitled Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Political Speech.  There are also some great law journal articles on the topic: for example, Erik Gunderson's "Every Little Thing I Do (Incurs Legal Liability): Unauthorized use of Popular Music in Presidential Campaigns" (14 Loy. L.A. Ent. L.J. 137 (1993-1994)) and David Johnston's "The Singer Did Not Approve This Message: Analyzing the Unauthorized Use of Copyrighted Music in Political Advertisements in Jackson Browne v John McCain" (27 Cardozo Arts & Ent LJ 687 (2010)).

What is the position under US copyright law regarding the use of songs by political campaigns?  First, we need to draw a distinction between using a song at a public event, like a rally, and using a song in an advertisement - the legal restrictions are different in the different circumstances.  Tamera Bennett provides a handy summary of the relevant legal implications:

...so long as a campaign secures the necessary public performance license, a song can be played at campaign events without any permission from the artist, songwriter or music publisher.  If Mr. Gingrich would like to incorporate the song into a video or advertisement, then his team would need to secure a master use license from the record label and a synchronization license from the music publisher.

Fairly simple: in the US, using a song at a public event requires only the securing of a valid public performance license from a performing rights organization (such as ASCAP, BMI or SESAC) by either the campaign or the venue at which the event is being held.  Beyond requiring that a public performance license has been secured, it seems that an artist or record company has no other ability to restrict the use of a composition or recording at a political event.  If, however, a political campaign wants to make use of a song in an ad, then a synchronization license and a master use license would be required.

So, if that's the case, on what basis might The Heavy and Third Side Music be objecting to the Gingrinch campaign's use of "How You Like Me Now"?  After all, available news reports indicate that the song was only being played at public events and not being used in ads, and it would be a pretty basic error for either the venue to not have a license or the campaign to not have acquired what is referred to as a "travelling blanket license".  What gives?

Here's where the differences between Canadian and US copyright laws come into the picture (Canadian copyright law is relevant because the record label is in Canada and it was evidently a Canadian lawyer who sent the letter to the Gingrinch campaign).  In Canada, the Copyright Act (Canada) gives to authors rights referred to as "moral rights".  The relevant part of Section 14.1 of the Act reads as follows:

The author of a work has, subject to section 28.2, the right to the integrity of the work...

Section 28.2 of the Act elaborates on what "integrity of the work" means:

The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,

(a) distorted, mutilated or otherwise modified; or

 

(b) used in association with a product, service, cause or institution.

 

Thus, under Section 28.2, the use of a composition "in association with a ... cause" which "prejudice[s]" the "honour or reputation of the author" would constitute an infringement of the author's moral rights.

Regrettably, we don't have any Canadian caselaw on point which would help us analyze the circumstances in which a Canadian author might be able to successfully claim an infringement of his or her moral rights if the author's song has been used by a Canadian political campaign.  Presumably the use of a song by a politician who does not enjoy the support of the author could constitute the necessary prejudice, since Canadian courts have held that the question of whether prejudice has occurred is a subjective one - essentially meaning that so long as the author thinks their reputation has been prejudiced, and so long as the author's opinion is "reasonably arrived at", then prejudice will have been deemed to occur (see Snow v. The Eaton Centre Ltd. (1982) 70 C.P.R. (2d) 105).  It doesn't take a very limber imagination to envision an artist who does not want their work used by a politician.

So, does that answer the question? Do The Heavy have a right to stop the Gingrich campaign from using their song?  Well, we're not quite there yet.  A list of just some of the issues which remain outstanding:

• first, the Gingrich campaign is operating in the US - which does not recognize moral rights for authors (or, properly, only recognizes moral rights for authors of works of visual art, such as painting and sculpture) - so someone could not assert a moral rights claim in the US
• second, the UK (from where The Heavy hail) only recognizes a more limited form of moral rights as compared to Canada - and the UK version of moral rights does not include the "used in association with a cause" branch which is found in the Canadian Copyright Act - The Heavy wouldn't suddenly acquire expanded moral rights simply because their record company was located in Canada
• third, moral rights are held by authors, not by record companies or music publishers - if anyone wanted to complain here, it would have to be The Heavy themselves (assuming they are the authors of the song in question), not their surrogates
• fourth, it would be interesting to inquire whether The Heavy (again, assuming they are the authors of the song in question) had waived their moral rights in any kind of music publishing contract they had signed

In sum, then, can The Heavy prevent the Gingrich campaign from using their song at public events?  Not under US law.  Could they prevent a Canadian politician from using their song at a public event in Canada? Possibly - though if they wanted to take the dispute to court they would certainly be breaking new ground in Canadian copyright law.

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The CBC is reporting about another copyright flare-up involving Canadian political parties:

The federal Conservatives are rejecting a demand by the CBC to withdraw file footage from the national broadcaster that appears in new Tory ads targeting their political opponents.

The Conservatives did not seek permission to use CBC content in three ads that were posted online and broadcast on TV on Monday, says CBC spokesman Marco Dube says.

This seems to be a bit of a recurring theme with the Conservatives: I had written earlier about the 2007 spat which arose because the Conservatives used footage from the 2006 Liberal leadership debates.  As I noted then:

The incident afforded an opportunity to reflect on a larger issue: should there even be a possibility of infringement in situations like this?  In Canada, this appeared to be a case of prima facie infringement - while American readers might have been thinking that there was at least a plausible argument that the use qualified as "fair use".  But Canada lacks a "fair use" concept, instead having a more limited "fair dealing" concept.  The Copyright Act enumerates certain exceptions to infringement - and if you can't fit yourself into one of them, you've infringed copyright.

I concluded then that the chances that the unauthorized use of footage in a political ad would constitute "fair dealing" under Canadian copyright law would be slim - but that such a conclusion was regrettable, since on freedom of expression grounds it almost certainly should be permissible to use short clips or stills, particularly from political debates and particularly from pool or public broadcaster footage, in the context of a political ad.  The 2007 copyright dispute does not appear to have ever had a publicly disclosed resolution - and I suspect the 2011 dispute will end in much the same way.

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Ben Sheffner (who's creating his own niche in covering political campaigns being accused of infringing copyright) does a nice bit of analysis of claims by Canadian rock band Rush that American libertarian politician Rand Paul made unauthorized and infringing use of Rush songs in his campaign materials.  The CBC coverage of the story notes:

Paul's campaign used Rush's The Spirit of Radio to energize a rally and another song, Tom Sawyer, in a fundraising video.

Paul also has used a line from The Spirit of Radio in speeches: "Glittering prizes and endless compromises shatter the illusion of integrity."

As Sheffner notes, a distinction needs to be drawn between playing songs at a campaign event (which would be a public performance requiring a license from the collecting society which administers those rights, such as ASCAP, BMI or, in Canada, SOCAN - the license could be held by the venue in which the event takes place or by the campaign itself) and incorporating the songs into an advertisement or online video (which would require master use and synchronization licenses from the owners of the master recording and the publishing rights in the composition).

Here at the Signal we previously discussed the use of copyrighted materials in political campaigns in the unimaginatively titled "Copyrights and Campaigns".

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Copyrights and political campaigns, that is.  Ben Sheffner has comprehensive post up about the lawsuit brought by Don Henley against a politician who used two of Henley's songs from his post-Eagles work in ads mocking Senator Barbara Boxer, a politician with whom Henley is simpatico in his political views:

Both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign "parody" videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material.

The motions focus largely on one issue: whether the videos, which use the compositions "The Boys of Summer" and "All She Wants to do is Dance," are indeed "parodies," and thus likely fair uses, or, rather, unprivileged "satires."

Sheffner provides in-depth consideration of applicable precedent and the workability of the distinction between parody and satire.  (A short but also comprehensive article on the topic, "The Politics of Fair Use", was written by Denise Mroz and David Levenson, and can be found in NYSBA Entertainment Arts & Sports Law Journal, Vol. 18, No. 3 (Fall/Winter 2007).)  As Sheffner discusses, in a case involving an allegation of copyright infringement, all of the action is occurring in determining whether using the songs without permission constitutes an allowable "fair use" under US copyright law - because US copyright law recognizes a fairly robust parody exception to copyright infringement, as set out in the US Supreme Court decision in Campbell v Acuff-Rose.  The existence and extent of a parody exception (and/or a satire exception) has an importance well beyond political campaigns - it can be of significance in areas such as documentary and fictional film-making as well.  Of particular note for Canadians is the fact that under Canadian copyright law, it is unlikely that the debate could occur at all.

The interface of copyright law and political campaigns (and filmmaking) is likely only to increase over time - as digital media allows for an increased ability to mix and mash-up materials, the temptation to make use of elements which are subject to copyright protection will only increase.  Indeed, Canadians enjoyed their own brief flare-up a few years ago when copyright and political campaigns collided.  As the Toronto Star reported in January 2007:

Conservative attack ads fired at Liberal Leader Stephane Dion may end up sideswiping the ruling party after questions were raised about possible breach of copyright laws.

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