25 Jul Queen May Dislike Trump but Artists Have Limited Say in Who Uses Their Music
http://abcnews.go.com/Business/queen-dislike-trump-artists-limited-music/story?id=40730790
By PAUL BLAKE –
House lights fade down. Backlights fade up. Cue music. Pause for effect. And enter the candidate stage right.
As Donald Trump emerged on the stage in Cleveland on Monday night, silhouetted against bright lights with Queen’s “We Are the Champions” playing in background, the crowd went wild. But Queen did not.
In a tweet posted on Tuesday morning, the British rock band said that the playing of the song was an “unauthorised use” and “against our wishes.”
But that’s only partially true: Playing the song appears to have been perfectly legal, as ABC News has learned that the RNC did have a license that grants it access to play the song in public.
“In order to publicly perform music in a public location, you need a performing rights license,” Marc Jacobson, a music and film lawyer in New York City, told ABC News.
In this case, the rights to play songs by Queen publicly are owned by a company called BMI.
Jodie Thomas, a spokeswoman for BMI, told ABC News that the RNC has a license — called a “conventions license” — that allows it full access to the BMI musical repertoire, which includes Queen.
The Trump campaign itself has a different kind of license — a “political entities license” — which means certain songs from the BMI library are off limits. Thomas said that Queen had objected to the campaign’s use of the song, and that BMI subsequently informed the campaign that it was no longer authorized to play the song.
Thomas also noted that “the RNC is more appropriately covered by the political entities license, which we are in the process of transitioning them to,” and that in the meantime, BMI has sent a letter to the RNC “letting them know that Queen has objected to the use of their music.” She added that BMI hopes that the RNC complies.
However, “as a matter of copyright law — assuming there’s a license for public performance — they have no right to stop it,” Jacobson said.
That being said, the playing of the song is still against the wishes of Queen, and there may be other avenues that Queen, or other artists who disapprove of the use of their work, could pursue.
Lawrence Iser, a Los Angeles lawyer who represented Jackson Browne in a lawsuit against Sen. John McCain over a similar matter, told ABC News that one such avenue would be to make a claim alleging that the artist’s right of publicity had been infringed.
“Queen has the ability to claim under the right of publicity that [the RNC is] using without permission their famous voices to sell a candidate or in this case the Republican Party,” he said.
Similarly, he said that the artists may be protected by trademark law.
“It’s called a false endorsement claim under section 43a of the Trademark Act,” Iser explained. “That gives somebody who has a well-known mark — in this case it would give Queen and the band members of Queen — the right to claim that you’re using our famous identity, our famous sound, our famous song in a manner that suggests we endorse Donald Trump.”
Finally, he said, the artists could claim that the convention is unlike other performances, and thus isn’t covered by a traditional performance license.
“I would argue in this instance — as you can [with] each of the Trumps and everyone else reading from teleprompters — this is a highly scripted show with high production values,” Iser said. “That was like what you’d expect to see in Las Vegas or on Broadway … and use of a song in a scripted show requires a grand rights license”
If all else fails, Iser said, artists can publicly denounce the use of their songs by candidates, and there is likely nothing in the performance agreements preventing them from doing so.
“Generally speaking, campaigns have historically backed away when artists have come out and said, ‘Don’t use my song,’” he said.
ABC News’ Lauren Pearle contributed to this report.