Might Donald the “Champion” be Trumped Under IP Law?

It was the first night of the Republican National Convention and music played throughout the Quicken Loans Arena in Cleveland. The song was “We Are the Champions” by Queen, and it was playing in the background as the then-presumptive Republican nominee, Donald Trump, emerged from a blinding white light onto the main stage. One can easily imagine The Donald demanding this song accompany him as he made his big entrance, given that his largest talking point on the campaign trail has been how he was going to make America “great” again. In other words, Trump wants America to believe that he will make us “champions” again. Unfortunately for Trump, Queen, the band that actually created the song, wants nothing to do with him. Shortly after Trump’s entrance, the band sent out a Tweet describing his use of its song as: “An unauthorised use at the Republican Convention against our wishes – Queen.”

The band later released an official statement through its publishing company, Sony/ATV Music Publishing: “We are frustrated by the repeated unauthorized use of the song after a previous request to desist, which has obviously been ignored by Mr. Trump and his campaign. Queen does not want its music associated with any mainstream or political debate in any country. Nor does Queen want ‘We are the Champions’ to be used as an endorsement of Mr. Trump and the political views of the Republican Party. We trust, hope and expect that Mr. Trump and his campaign will respect these wishes moving forward.”

However, this is not the first time Trump has been met with disapproval from musicians for his musical selections. In September 2015, the band R.E.M. publicly lambasted Trump for his use of its song “The End of the World as We Know It” at a Washington, D.C. rally; Trump had used the song to underline his views on President Obama’s nuclear deal with Iran. R.E.M. frontman Michael Stipe took to Twitter (via bassist Mike Mills’ Twitter page) to express his disdain for Trump and other politicians who use the group’s music without permission: “Go f–k yourselves, the lot of you — you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign.”

Trump had previously gotten into hot water with Neil Young for his use of the song “Rockin’ in the Free World” to help kick off his presidential campaign. “Donald Trump was not authorized to use ‘Rockin’ in the Free World’ in his presidential candidacy announcement,” a spokesperson for Neil Young stated at the time. “Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.”
It is infringement to use a copyrighted song without a license, even if the use is non-commercial/political. The Recording Industry Association of America (RIAA) has some guidelines specifically for politicians utilizing music at their events:

“When music is played in public, such as at a campaign event, it is typically necessary to obtain a license for the musical composition (words and music). It is not necessary to obtain a license from the owner of the sound recording (usually a record label)…

A campaign must obtain permission from the owner of the musical composition (usually a music publisher [such as ASCAP, BMI, or SESAC]). This is known as a ‘synch license’…

[I]f a campaign wants to use a specific recording of the song (e.g., Survivor’s recording of ‘Eye of the Tiger’), then the campaign must obtain permission from the owner of the sound recording (usually the record label). This is known as a ‘master license.’”

Furthermore, the American Society of Composers, Authors, and Publishers (ASCAP) has its own advice:

“[I]f the campaign wants to use a song as its theme, they should contact the management for the artists and/or songwriters of the song in question and obtain their permission.”

With Queen’s “We are the Champions,” the necessary permissions must be obtained through a counterpart performing rights organization called Broadcast Music Inc. (BMI). Most copyright holders have organized themselves into broad performing rights organizations (PROs). Three major PROs—ASCAP, BMI and the Society of European Stage Authors & Composers (SESAC)– hold the rights to the vast majority of music produced in America. This makes the process simpler for anyone who wishes to license multiple songs for an event; instead of endless hours of negotiating with all the separate copyright holders of various songs, you can just pay a flat fee to the three PROs and use almost any American song you want at your event. License fees are determined based on a variety of factors, including how the music will be used and the frequency and duration of the use. Therefore, from a copyright perspective, the Trump campaign could conceivably have received a license to use the song from BMI without needing to obtain permission from Queen. The question is, did the campaign have the foresight to do this, or was a license already in place through the venue or the RNC? It is unclear at this time.
If no one had obtained a license, Trump could attempt to claim fair use of the song, but this would most likely not succeed. Fair use can be understood as the copying of copyrighted material for a limited and transformative purpose. The two general categories of fair use are commentary and parody. Using a song to set the mood for a speech certainly is not transforming the song in any way, and therefore should not fall into either of these two broad categories. Thus, fair use would most likely be off the table for Trump and his campaign.

Even if the Trump campaign had received permission to use the song through BMI, giving it a defense from a copyright perspective, it still may be vulnerable to Queen’s wrath. As the group made explicitly clear, Queen does not want its work associated with Trump. This clearly extends to not wanting its fans to mistakenly believe that the band in anyway endorses Trump. While Democrats also have been known to draw the ire of musicians, it is not surprising that Donald Trump, and so many other Republican politicians, frequently get chastised by musicians whose work has been used during their campaigns. Most artists tend to lean to the left on the political spectrum and, therefore, do not want their music associated with conservative politicians. Queen may see its reputation at risk of being tarnished when their song is used to introduce Trump, which may fall within the realm of trademark law or the “Right of Publicity.”

Many states offer a legal protection for the “Right of Publicity,” giving celebrities the ability to sue if they feel their identities are being commercially used without permission, but this personal right arguably doesn’t apply to a band. However, the federal Lanham Act governs trademark infringement, and under it, infringement can occur if the use of a song by a person or entity is likely to create confusion in the marketplace that the musician endorses that person or entity, especially if this association harms the musician’s reputation. Outside the political context, Jimmy Buffett succeeded on a claim opposing the use of the term “Margaritaville” for restaurant services in Buffett v. Chi-Chi’s, Inc. The U.S. Patent and Trademark Office agreed with Buffett, stating that the term “Margaritaville” is so closely associated with Buffett that a false connection with him would likely be assumed when the term is used for restaurant services. The federal courts have developed an eight-part test for likelihood of confusion, which originated in the Ninth Circuit case AMF. Inc. v. Sleekcraft Boats (1979). The eight factors of the test are:

  1. The strength of the mark;
  2. The proximity or relatedness of the goods;
  3. The similarity of the marks;
  4. Any evidence of actual confusion;
  5. The marketing channels used;
  6. The degree of care customers are likely to exercise in purchasing the goods;
  7. The defendant’s intent in selecting the mark; and
  8. The likelihood of expansion into other markets.

There are a lot of rings to jump through if one wishes to prove a likelihood of confusion exists under the Lanham Act, especially when the “mark” in question is a performer’s song and the use is not commercial. The “Margaritaville” case dealt with a competitive commercial (restaurant) use rather than use by a politician. Conversely, the average person is not likely to believe that a musician or band supports a political candidate simply because that candidate is using one of their songs. There’s also the question of whether the politician’s use would be protected by the First Amendment. Therefore, artists have a big hill to climb under trademark law. As a result of this arduous process, there has been little litigation on this topic. Artists simply do not want to subject themselves to a long, difficult legal battle to prove trademark infringement when most people would not conflate a music selection by a candidate as an endorsement for that candidate anyway.

While right of publicity or trademark law could come into play in this scenario, Queen shouldn’t honestly believe that the public, be they devoted Queen fans or just casual observers, would assume that the band now suddenly endorses Trump just because “We Are the Champions” can be heard in the background of his garish entrance at the RNC. Therefore, Queen will most likely be content with publicly panning the Trump campaign, an opportunity many musicians relish to take advantage of whenever they can.

MillerDanielBlogDaniel Miller