At the Republican National Convention earlier this week, Donald Trump entered the stage to Queen’s 1977 hit “We are the Champions”.
Shortly after the event Queen responded on Twitter saying the use was unauthorised.
It was later confirmed that the Republican National Convention did in fact pay to licence the song from Broadcast Music Inc (BMI), a performing rights organisation, under a blanket licence to use any of BMI’s members’ songs.
Performing rights organisations like BMI (or Australian Performing Rights Association (‘APRA’) in Australia), provide an intermediary function whereby artists and/or their publishers grant them the ability to licence their music for public performance and collect and distribute royalties to the relevant rights holders.
Given the performance in this instance was a public performance, no permission or other licence from the artist or publisher was required, other than paying the public performance licence fee to BMI.
However, there are some other legal considerations that should be made before one publicly performs someone else’s music.
In the United States, this would include the “Right of Publicity” which is the right under US law of every individual to control any commercial use of his or her name, image, likeness or some other identifying aspect of identity (which would supposedly include an artist’s music provided an unequivocal association could be made between the song and the artist).
The Republican National Convention’s use of Queen’s song as part of Trump’s political campaign could be seen as a violation of the Right of Publicity given Queen did not give their permission.
However in order to successfully bring this claim Queen would need to convince a judge that the Republican National Convention’s use of their song confused the public into thinking that Queen endorses Trump. Given the use was only in a live performance setting, as opposed to repeatedly in a TV commercial for the campaign, a false endorsement argument may be a little far-fetched. Also in the context of a TV commercial one would need to seek a licence and permission from the artist and/or publisher anyway in order to obtain the right to synch the music with the visual recording.
In Australia we do not have a Right of Publicity, but we do have laws regarding false or misleading representations about goods or services having sponsorship, approval or affiliation under both Australian Consumer Law and under the common law tort of passing off.
We also have what we call “moral rights” in Australia (as does the United Kingdom, where Queen is from!) as defined in our Copyright Act 1968 (Cth).
Moral rights include the right of integrity of authorship and the right to not have one’s work subjected to derogatory treatment.
‘Derogatory treatment’ means the doing of anything to a work that is prejudicial to the author’s honour or reputation. However this is still a difficult action to bring and only a handful of cases in Australia have been successful.
Given Queen has openly said that it is against their wishes for their music to be used in any political campaign, such use could arguably be seen as a violation of the band’s moral rights. However, unfortunately moral rights do not exist in the United States so again it may not be possible for Queen to bring such a claim against the Republican National Convention.
The sad truth for many artists is that it is almost impossible to stop their songs from being publicly performed like this as it becomes difficult to argue that the song has been used as an endorsement. Other unsuccessful attempts have included Adele trying to stop Donald Trump again from using her song “Hello”!
Instead most artists resort to making comments on social media and/or writing directly to the offender to request they cease using their music. Hunters and Collectors were recently successful with this approach when they wrote to Steve Price to request he not use their song “Holy Grail” in the introduction segment of his radio program on 2GB as they did not agree with his political views.
Unfortunately, it seems Queen have not been so successful in their attempts to disassociate their music with Trump’s campaign as this is the second time Trump has used the band’s music in his campaign, despite earlier complaints from the band.
So it looks like two wins to Trump and zero to Queen.
We will keep you updated if we hear anything further.