Can musicians and artists legally demand that politicians not use their works?
Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.
Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:
Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
Lady Gaga is an American recording artist. She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016. As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name. I feel confident in stating that Lady Gaga is famous.
Yet in an opinion dated March 30, 2016, the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…” Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.
If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?
On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others. The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.
How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?
Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial. In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.
[originally published on October 21, 2015 at www.law-dlc.com]
In August, Ryan Adams announced his intentions to release song-by-song and nearly note-for-note cover of Taylor Swift’s “1989” album. He covered every single song and all of the same lyrics, just stripped down and re-recorded as a more guitar-based interpretation. It is a rather audacious project for an artist that is more of an indie musician than a pop star. After the release of his covers album, many people asked me that all-too-common question:
How is that legal? How is that not copyright infringement?
[originally posted September 23, 2015 at www.law-dlc.com]
By now it is likely you have seen the news story. On Tuesday, September 22, 2015, Judge George H. King, in the United States District Court for the Central District of California, ruled that Warner/Chappell, the publishing arm of Warner Music, did not have the right to enforce its claims in the copyright for the ubiquitous lyrics to the song “Happy Birthday.” The legal implications are that the song lyrics may be in the public domain and free to use by all.
The question many of you likely also have is “how was ‘Happy Birthday’ still subject to a copyright after all these years?” It can be somewhat complicated.
[originally published September 18, 2015 on www.law-dlc.com]
In January 2014, Rick Ross sued LMFAO for copyright infringement over their use of lyrics from their song “Party Rock Anthem.” In particular, Ross claims that LMFAO are infringing on his copyright in the phrase “Everyday I’m hustlin’” which is a phrase Ross claims originally appeared in his song “Hustlin’.” LMFAO modified the lyric to “Everyday I’m shufflin’” and also began selling t–shirts and clothing bearing the same phrase. Rick Ross apparently was not amused by this apparent derivative work.