Category: Copyright

Music on the Campaign Trail

In the Fall of 1977, just weeks before gay rights activist Harvey Milk won a seat on the San Francisco Board of Supervisors, the English rock band Queen released the album News of the World. The LP included a short, heavily-rhythmic single called “We Will Rock You”, which typically segues into the anthemic “We Are the Champions”. Written by Queen’s lead guitarist Brian May, “We Will Rock You” was recorded in an abandoned church in north London because the band liked the acoustics. And as Seth Wickersham, writing for ESPN reports, “For weeks, Mercury and May took turns stomping on old pews and clapping, until they got the right sound.”

Nearly four decades later, “We Will Rock You” remains the number one track played at American sporting events—a fact that has intrigued me as much as I imagine it’s made a few structural engineers nervous since the trend began. Forgive the generalized stereotype implicit in this observation, but to watch, for instance, forty thousand Dallas Cowboys fans sing along with gay Freddie Mercury in virile support of their football team is  exactly the kind of cultural counterpoint I appreciate when it happens. The song was literally born in a church; it was sung by an incredible artist whose identity was at least somewhat restrained by the semi-tolerant limbo of homosexuality through the 1980s and the AIDS crisis; and then it became the Sunday hymnal of some of the most mainstream and socially conservative Americans, all rallied into chorus by May’s thump-thump-clap rhythm.

The fact that the verses of “We Will Rock You” are about loss and futility only adds another layer of irony to its role in sports fandom; but this is generally what we make of music anyway. The chorus and the rhythm fit our moods of triumph, sorrow, defiance, momentum, heartbreak, and so on, even if the lyrics and melody tell a very different story. And this relationship to music often comes into sharp relief when political candidates use a popular song—almost always because of the chorus—at campaign events.

In particular, when candidates represent or evangelize a point of view that is anathema to the authors’ beliefs—or even in direct opposition to what a song itself might be about—it has lately become a regular feature of our politics to hear of artists either asking or demanding that politicians not use their works. These stories, of course, lead to all manner of confusion about copyright, fair use, and the control an artist may or may not exert in these contexts. In most cases, people seem to side with artists, which is certainly encouraging, though hatred of a political candidate and love of a musician isn’t necessarily the clearest lens through which one might view these conflicts.

When Neil Young demanded that Donald Trump stop using his song “Rockin’ in the Free World” at campaign events, fans praised Young, though it’s not clear that he was on solid legal ground at the time. In general, a campaign is covered as long as the venue or the campaign itself has paid fees to Performing Rights Organization (PRO) like ASCAP, BMI, or SESAC (or all three) to license the use of nearly any song for public performance. The campaign has a responsibility to ensure the venue has these licenses (or to get its own), but as long as the PROs are covered, the artists and songwriters generally have no say, from a legal perspective, about the context in which their songs may be used at live events.

Artists may certainly ask a political candidate not to use a song, and they are free to publicly criticize the use as much as they want, but they can’t rely on copyright law to stop a politician from making this kind of use if the licenses are up to date. In another context, however, if a candidate makes repeated use of a song to the extent that it starts to become his/her theme music, the artist may see this as unlicensed endorsement and seek to enforce his/her right of publicity in order to stop the use. I’m not sure what the legal facts were in the Trump/Young kerfuffle; I’m guessing the campaign was most likely in the clear but decided to let the song go rather than allow a public fight with Neil Young to distract from its core message at the time of hating on Mexicans. One must prioritize.

Mike Huckabee Uses Eye of the Tiger at Kentucky Rally

In a different—and slightly bizarre—circumstance, the organization Huckabee for President, Inc. is facing a lawsuit by publisher Rude Music for copyright infringement stemming from a public performance of the song “Eye of the Tiger”, co-authored by Rude Music’s owner Frank Sullivan for the 1982 motion picture Rocky III. Approximately one quarter of the four-minute song was played outdoors at a rally in Grayson, KY on September 8, 2015 immediately after candidate Huckabee introduced Kim Davis to the podium following her release from the Carter County Detention Center, where she had been jailed for her refusal to issue marriage licenses to same-sex couples. It’s a safe bet the county jail hadn’t paid any PRO licenses as they probably don’t host a lot of parties or other events requiring music. Ostensibly, this suggests the Huckabee campaign messed up in one way or another, and the defense presented in their case seems a little odd.

The attorney for Huckabee has presented affirmative fair use defenses addressing all four factors, including a less-frequently-cited exception for use of music at a religious assembly. In fact, the defense states that the candidate was only in attendance as an evangelical Christian in support of a rally called the “We Stand With God Pro Family Rally”, organized by a religious group and not the Huckabee campaign. What seems odd to me, though—and speaking as a layman of course—is that the foundation of Huckabee’s defense would appear to be that the Grayson event simply was not his show—that their operatives did not publicly perform “Eye of the Tiger” as part of the Huckabee for President campaign. And the reason I say this is odd is that if this fact can be proven—or cannot be disproven—then the fair use defenses presented would be moot.  If Huckabee for President, Inc. did not publicly perform the song, then it cannot have infringed, which begs the question of offering any fair use defenses at all. If a use by a defendant does not exist, then there is no question of fairness to be judged.

So, the defense of religious assembly is irrelevant if it was not Huckabee’s assembly; and if it was in any way his assembly, he will have to prove that it was a purely religious gathering having nothing to do with the campaign. How he might hope to make that distinction, particularly when Mike Huckabee barely recognizes a separation between church and state, would appear to require a rather fine legal scalpel.

In particular, as mentioned, the candidate introduced Kim Davis to the stage and then somebody pushed Play on “Eye of the Tiger”; so even if this coordinated bit of theater came together impromptu, it looks an awful lot like the event became a Huckabee for President moment, regardless of whether it began as a religious assembly. One way or another—whether professionally planned or divinely arranged—candidate Huckabee certainly ended up with a neatly choreographed moment—shared via amateur video online—in which Davis joins him at the podium to the beat and triumphant lyrics of Sullivan’s famous comeback song. The fact that this particular visual is just one of many reasons Mike Huckabee will never be president has of course no bearing on the infringement case.

As our politics have become more divisive, and side-show happenings can gain wider exposure than in pre-Internet years, politicians’ use of popular music is likely to produce more frequent points of contention for both artists and their fans. And, as I say, while the particulars of these cases often sow confusion about copyright and its limitations, the emotional response is anything but irrelevant. That bile-in-the-throat feeling one might get if Donald Trump played Bowie’s “Heroes” at a campaign rally is neither petty nor dismissible. Because music is more powerful than either the smartest or the dumbest thing any political figure has ever said. It is simultaneously more primal and more enlightened. It’s why Brian May’s rhythm can induce Pavlovian harmony among millions of sports fans, who in another context might have righteously trampled Freddie Mercury’s civil rights. Maybe music for politicians should come with a label:  WARNING. CONTENTS MAY ROCK YOU. USE WITH CAUTION.

No Copyrights for Critters Says Judge

Readers may be astonished, relieved, or understandably apathetic, to learn that a federal judge in California has ruled that a Sulawesi macaque may not sue for copyright infringement.  In fact, Judge William Orrick broadened his ruling to affirm that no animal may own a copyright. The judge swears he looked and looked but could find no evidence to indicate that the rights expressed in the Copyright Act extend to the non-human fauna of the world.  This news comes as a relief to me personally as I’ve been a bit on edge ever since one of our cats made transformative use of an unframed photograph of mine. I am absolutely sure this ungrateful feline, in addition to its habit of biting and scratching, is instinctively litigious.

This recent ruling was a disappointment for the People for the Ethical Treatment of Animals (PETA), who had filed suit against British wildlife photographer David Slater and his San Francisco-based self-publisher Blurb over a photograph known as the “monkey selfie.”  The crested macaque, whom PETA identifies as Naruto, and who in 2011 snapped a photo of himself with Slater’s camera, would not comment on the outcome of the case or, for that matter, what he thinks of being named Naruto by a bunch of strangers from another species.  Sources close to the macaque, including two tarsiers, a water buffalo, and a Komodo dragon also declined to comment, apparently too overcome with emotion to share their thoughts so soon after the defeat.

For those who missed the original story (and there really is no excuse), the saga of the “monkey selfie” initially exploded onto the Web in the Summer of 2014, when Slater sent a takedown request to Wikipedia, which was making use of the photograph without permission and allegedly infringing Slater’s claim of copyright in the image. The Wikimedia Foundation rebutted that because the monkey had snapped its own photo, the image belongs to nobody and cannot, therefore, be protected by copyright.  The questions raised by this primate picture sparked a considerable amount of professional and amateur copyright theory in the media, and these conflicting views, combined with the cost of litigation, may have been a factor in Slater’s not pursuing legal action to enforce his claim against Wikimedia Foundation.

PETA, on the other hand, decided to assert that the fruits of one’s labor principle is as much an animal right as a human right.  This despite the fact that, given the same evolutionary opportunity as humans, the non-homo-sapiens among us have yet to produce even a modest body of copyrightable works.  In fact, in 2003, researchers at the University of Plymouth, in an attempt to test what’s known as the “infinite monkey theory”, left a computer keyboard in the care of six crested macaques—it is unknown whether any of these six were related to Naruto—to see what literary work they might produce. The monkeys managed to type five pages devoid of a single sentence in any known language, made an abundant use of the letter ’S’, and then liberally relieved themselves on the keyboard.

Still not undaunted by Naruto’s copyright rejection, Jeff Kerr, general counsel for PETA (a human), commented thus:

“Despite this setback, legal history was made today because we argued to a federal court why Naruto should be the owner of the copyright rather than been seen as a piece of property himself,’ Kerr said. ‘This case is also exposing the hypocrisy of those who exploit animals for their own gain.”

It is hard to imagine that PETA is going to make much progress conflating a respect for animals—which is a worthy endeavor—with copyright, or that this is a particularly wise use of resources given the organization’s overall agenda.  Aside from those issues, the animal world can be brutal enough, what with the killing and eating of one another, and it seems to this observer that it would merely introduce a new form of cruelty to subject these poor creatures to the copyright debates.  On the other hand, given a monkey’s penchant for throwing feces, this could provide a needed political boost to the floundering European Pirate Party.

In a related story, cognoscenti in the art world are murmuring that controversial artist Richard Prince may be about to exhibit a print for sale of the “monkey selfie”, which he will argue he has transformed simply by looking at it for a little while.*  When told of these latest developments, the macaque they call Naruto scratched himself and looked toward the horizon as though remembering a simpler time.

*This is satire. I have no knowledge that Mr. Prince intends to make use of the “monkey selfie”.

Don’t call copyright a government-granted monopoly.

When most people discuss or debate copyright’s value in the contemporary market, they talk about the utility of the law—typically arguing the efficacy or rationale of specific contours like term length or enforcement—while generally overlooking the philosophical principles that led to the IP clause being written into the U.S. Constitution in the first place.  This is of course not uncommon with any number of issues.  A particular constituency or individual citizen with a political agenda is apt to read the one sentence or phrase in our elegantly concise Constitution and interpret it as he sees fit.  For instance, the Framers will often allude briefly to a rationale with a dependent clause like “In order to maintain a well-regulated militia …” which is then interpreted as either a still-relevant or now-obsolete explanation for the 2nd Amendment, depending on whether the interpreter supports or refutes gun rights.

Similarly, the conditional expression setting up the IP clause, “The Congress shall have the power to promote the progress of Science and useful Arts …” has been the source of heated argument that copyright’s utility is clearly in the service of society; and this premise then becomes the basis for describing copyright as a “rent”,  “tax”, or “monopoly”, granted somewhat reluctantly by the government to individual authors (and inventors) in order to extract the fruits of their labor for the greater good.

In fact, a few years ago, Mike Masnick riled up his readers at Techdirt over the fact that Register of Copyrights Maria Pallante had the nerve to suggest that copyright serves the author first and society second.  Oh, the screaming and the gnashing of teeth that ensued.  But, of course, from a utilitarian perspective, Pallante was making a perfectly innocuous statement of fact about the only way in which the order of operations can be applied.  Clearly, if the author does not first create, society is never served at all.  But that’s not what I want to talk about.

I recently finished a new book, written primarily for legal scholars, by Randolph J. May and Seth L. Cooper of the Free State Foundation, called The Constitutional Foundations of Intellectual Property:  A Natural Rights Perspective. The book makes a case for the philosophical underpinnings of intellectual property in the U.S. Constitution, beginning with the Enlightenment influences on the Framers and concluding with those principles ultimately being expressed in the post-Civil War amendments ending slavery and affirming the rights of citizens regardless of their state of residence.

Terry Hart’s latest post on Copyhype is a review of this book, in which he rightly points out that the Natural Rights foundation for intellectual property has been largely substituted by a purely utilitarian discussion among most academics critical of contemporary copyright.  And these murmurings in the hallowed halls of law colleges have trickled down into the blogosphere where they have coalesced around the meme that copyright is a government-granted monopoly.  But to ignore the philosophical precedent for intellectual property—regardless of the necessity to debate the utilitarian contours of the laws themselves—is a tragically flawed mistake for any citizen to make, no matter where he or she sits on the political spectrum.  And this is because the intellectual property right is really just one branch on a rather important philosophical tree to which all our favorite civil rights are also attached.

As mentioned, May and Cooper’s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak. But in simple terms, the first part of the book supports the view that the appearance of the intellectual property clause in Article 1, Section 8, Paragraph 8 of our Constitution is an expression of the principles articulated primarily by English philosopher John Locke in his Two Treatises on Government. First published in 1689/90—exactly a century before the first U.S. Copyright Act—these treatises imagine the individual in a hypothetical State of Nature in order to then express what Locke sees as the purpose of entering into the social contract we call the state or government.  In the State of Nature (i.e. a condition in which the individual enjoys what we call Natural Rights), Locke argues that the individual has a “property in his own person” and that part of the purpose of government is the security of his property, which is more commonly known by Americans as the pursuit of Happiness.

Locke uses the word property in a much broader sense than we generally to use it today, which is to say that each of us has a property in our being—our bodies, our minds, and our faculties.  We still believe in this principle, of course, we just don’t generally use the word property to talk about it.  But from this Lockean notion of property comes the idea that if your hands and mind are yours, then what you produce with your hands and mind—whether it’s a harvest of wheat or a novel—is logically also yours.  Critics of intellectual property will often bypass Locke’s definition of the word property in order to draw contemporary attention to the logic that physical property like a car is fundamentally different from intellectual property like a copyright in a song.  This argument carries particular weight in the digital age when copies of intellectual works are now profoundly non-physical; but as May and Cooper point out, the differences between these types of property are appropriately reflected in the contours of the laws themselves—and remain amendable according to changes in market and social conditions—while the foundational principles for both types of property remain sound and relevant.

The Lockean notion of a property right in the fruits of one’s labor should not, in my opinion, ever be relinquished to the authority of the government as a privilege—which is what a monopoly technically is—rather than asserted and protected as an expression of our Natural Rights as individuals.  As May and Cooper demonstrate, both physical and intellectual property act to define and limit the role of government, which is entirely consistent with American constitutionalism, whereas fostering monopolies is anathema to those principles. Government’s mandate to protect both types of property, the authors argue, acts as a hedge against “centralized decision-making,” which is to say a society that is not composed of free-thinking individuals. There is no question that May and Cooper approach their argument for the foundation of IP from a libertarian/conservative perspective of limiting the power of government; and this is actually refreshing inasmuch as I have never quite understood those academics of the same political stripe, who have lately portrayed copyright as a government-granted privilege.  That seems to me like surrendering considerable ideological territory in a way that is inconsistent with the advocacy of limited government.

At the same time, for those of us who lean more politically left, I would add that I believe the fruits of one’s labor principle also acts to limit the power of capital, which is particularly relevant today when so many people are frustrated to the point of concluding that capitalism is only capable of producing wealth consolidation, a foundering middle class, and corporate control of government itself.  In the same way that I would advocate fixing capitalism rather than throwing out the proverbial baby with the bathwater, I would point out that the fruits of one’s labor concept—as it is specifically expressed through intellectual property—really implies a much larger social contract than the incentives of copyright and patent holders.

The idea that your labor is your own until you provide its fruits in fair trade to someone else is the basis of every hard-won labor and civil right—because these rights are often intertwined—over the worst abuses of either corporate owners or government agencies.  This is also consistent with the views of the Founders, who sought to foster neither an intrusive government nor a new nobility that would give rise to new forms of feudalism.  And because too little of the former provides opportunity for the latter, and vice versa, it is our fate to constantly seek to balance these opposing forces.  Hence, the fruits of labor right vested in every individual citizen acts as a balancing force against both extremes; and IP rights are merely one specific expression of this much larger principle.  Even free speech itself is an extension of this Lockean principle that the individual has a property in his person.

With 1% of the population owning more than 50% of the nation’s wealth; with direct assaults on labor rights in certain regions and economic sectors; with technologies threatening to devalue human work in various ways; and with extreme examples of certain corporate owners getting away with imposing their own morals on employees, this is a terrible time to be calling intellectual property a government granted monopoly.  I would never want to cede the logical conclusion of that argument, to suggest that every citizen’s right to the fruits of his or her labor is in any way a privilege, which may be argued away on the basis of apparent utility alone.  Ultimately, we’re talking about a human right that was forged in the crucible of a century and a half of English civil strife over religion and the divine right of kings.  It may be just a short sentence in the Constitution, but it has a long and bloody intellectual pedigree.