As you read this, the US re-election campaign for Donald Trump is probably using the Rolling Stones’ ‘You Can’t Always Get What You Want’ for another ill-advised and socially undistanced event, despite the ongoing legal efforts of the band to prevent their music being associated with the president and his administration.
And they’re merely the most high-profile example of artists furious that their work and goodwill is being used by Trump without their opt-in. There are literally dozens of others, including Queen (for ‘We Are The Champions’), House Of Pain (‘Jump Around’), Neil Young (‘Rockin’ In The Free World’) and R.E.M., after Trump used the bizarrely self-trolling ‘It’s The End Of The World As We Know It (And I Feel Fine)’.
Nor is it limited to the US. New Zealand’s right-wing National Party managed to get successfully sued by Eminem for using ‘sound-alike’ music in promotional material without due diligence.
“Suing someone for copyright infringement is a long and eye-wateringly expensive process”
For the most part, their ideological equivalents in Australia have escaped such issues here – although in the ’90s the Liberal Party memorably used the music of Melbourne pop-rock band Boom Crash Opera without permission not once, but twice, so evidently they have a fan in there.
According to Boom Crash Opera guitarist Peter Farnan, the party made an unauthorised attempt to use ‘Bettadaze’ for their doomed 1993 federal campaign. “The next time was the [Victorian] state Libs using [well-known single] ‘Dancing In The Storm’ as the play on for a campaign event – it may have even been the campaign launch,” he explains. “We objected but it was after the fact and [co-writer] Richard Pleasance and I received a small compensatory payment.” (You read it here first, folks: someone in the arts actually got money out of the Liberal Party!)
But what are the actual legalities? Can you sue a politician you don’t like for using your music?
According to Karen Tinman, Senior Marketing And Communications Manager for the Australasian Performing Right Association (aka The People That Make Sure Songwriters Get Paid For The Use Of Their Music), pollies definitely can’t use songs in Australia on a whim.
“An ad would require a synchronisation licence from the copyright owners of the musical work – the music publisher or the composer [if the artist doesn’t have a publisher] and the use of the recorded master, which is the label or recording artist if they aren’t signed to a record label,” she clarifies. However, she also made clear that rallies are in a class of their own as far as the rights are concerned.
“For most artists, publicly shaming the party in question is the easiest way to get something approaching justice”
For playing music at a public event, organisers can buy a licence which covers all the writer, performer and recording owner’s rights – but that specifically excludes political events. The licence agreement includes this line: “Works performed at political events are excluded, unless the songwriter’s prior approval has been obtained in writing.”
In other words, if you’re far-right organisation like Reclaim Australia and you’re using Cold Chisel’s ‘Khe Sanh’ at your thinly attended white supremacist event without securing permission, then you’re breaking the law. Mind you, if you’re thinking “An explicitly sympathetic song about the treatment of Southeast Asian people as sung by a Scots-born man married to a woman of Thai descent? Gosh, that would be simply perfect for our anti-immigration event!” then maybe you need someone else doing the thinking for you in any case.
So if it’s illegal, why don’t artists immediately deploy the lawyers when a political party ganks their music? In short, money.
A copyright infringement claim does get immediate takedown results on platforms like Facebook, Twitter and YouTube, which Trump’s deputy chief of communications Dan Scavino learned recently when the campaign video he’d lovingly set to Linkin Park’s ‘In The End’ was replaced within minutes by notification of a copyright claim from the not-remotely-consulted band.
But in the physical world, suing someone for copyright infringement is a civil rather than criminal case, and is a long and eye-wateringly expensive process. The music industry of 2020 simply doesn’t have the deep-pocketed heavyweights it once did.
In fact, mining magnate and occasional politician Clive Palmer’s decision to use an unauthorised rewriting of Twisted Sister’s ‘We’re Not Gonna Take It’ as the 2019 campaign jingle in his radio and TV ads for his United Australia Party was as unlucky as it was brazen.
“The Rolling Stones are the most high-profile example of artists furious that their work is being used by Trump”
Normally, music publishers would look at the deep pockets of such a defendant and the likelihood of several years of lawyer’s fees before a court date was even set, and conclude the expense was too great.
However, in this case, the rights holders of the song are Universal Music Publishing: part of the planet’s largest multinational music company and one of the few potential plaintiffs with the resources and local representation to see such a case through – which is why it’s on the docket of the Federal Court in New South Wales for this coming October.
But that’s a rare example. For most artists, publicly shaming the party in question is the easiest and most cost-effective way to get something approaching justice – as long as the politicians in question still feel any shame, at least.