Monday, December 10, 2018
Not Even the President Can Avoid Copyright Infringement Claims
Singer-songwriter Pharrell Williams has threatened to sue President Trump over the use of the song “Happy” at political rally, held just hours after a white nationalist killed 11 people at a Pittsburgh synagogue. The cease-and-desist letter sent by Pharrell’s lawyer to the President read in part:
On the day of the mass murder of 11 human beings at the hands of a deranged ‘nationalist,’ you played his song ‘Happy’ to a crowd at a political event in Indiana. There was nothing ‘happy’ about the tragedy inflicted upon our country on Saturday and no permission was granted for your use of this song for this purpose.
Pharrell Williams is the owner of the copyright in “Happy,” with the exclusive right to exploit same. Pharrell has not, and will not, grant you permission to publicly perform or otherwise broadcast or disseminate any of his music. The use of “Happy” without permission constitutes copyright infringement in violation of 17 U.S.C. 501.
Pharrell is not the first singer-songwriter to take issue with a political figure’s use of a song at a rally. What makes his particular case different though is that he most likely has a valid claim for copyright infringement.
In most cases, the artist has no valid claim because political campaigns are often able to procure blanket licenses from performing rights organizations (“PROs”) such as American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI), when rallies are held in public venues. These licenses allow politicians to play music at events and rallies even over the protest of an artist.
As it turns out, Pharrell is not represented by either ASCAP or BMI. He is instead represented by Global Music Rights (GMR), and it is known that neither the venue where rally was held nor the Trump campaign have a license from GMR. The President’s use of the song was therefore unauthorized.
If Pharrell sued for infringement, Trump may try to claim “fair use” of the song but would most likely be unsuccessful in that attempt. “Fair use” is a copyright principle that excuses unauthorized uses of a copyrighted work when used for a transformative purpose such as research, scholarship, parody, criticism, or journalism.
Perhaps the biggest reason a fair use defense would fail in this case is because the President used the song at the rally for the purpose of entertainment, which was Pharrell’s exact purpose for creating the song. There is no evidence of a transformative use at all; no new meaning or expression was added to the song, nor was any value added to the original recording. The song was also not used in parody, nor for the purposes of scholarship, research, or education.
While Pharrell has not filed suit yet, the cease-and-desist letter may be as far as this case goes. In any event, politicians perhaps should reach out to artists to ask for permission to use their music, regardless of whether a license has obtained. This practice would prevent politicians from being publicly lambasted by angry artists who do not agree with their views, but let’s not digress.