When the Australian Prime Minister announced the commencement of the 2022 Australian Federal Election campaign, the Opposition Leader responded with the enthusiastic battlecry of “Hey! Ho! Let’s go!”, taken of course from the Ramones’ iconic Blitzkrieg Bop.
The political use of music is certainly nothing new – we’ve touched on it in articles on protest songs and the split of Public Enemy – but with politicians increasingly using music in their election campaigns, and often landing in hot water for doing so, it is worth looking at how Australian law deals with this issue.
Hey! Ho! Let’s go to court
Under Australian copyright law, the copyright owner has the exclusive right to reproduce, publish, perform or adapt a “substantial part” of a musical work. In relation to songs, there are usually several co-existing “works” which are protected by copyright, including the lyrics, the sheet music, and the master recording of the song.
Quoting lyrics from a song – such as, say, Blitzkrieg Bop – is unlikely to infringe the sheet music or master recording of the song, but could constitute a performance or reproduction of the song lyrics (a literary work), if the quoted words are a “substantial part” of the lyrics. This is a question of quality, not quantity. Therefore, while a few lines from the chorus of a song may be a small fraction of the overall lyrics, it is possible that this will nevertheless be considered a “substantial part” of the work if this part of the song is particularly memorable or important.
Putting aside the likelihood of a songwriter asserting copyright infringement based on quoted lyrics, it is worth bearing in mind that there is no set rule for what percentage of a copyright work can be permissibly taken and that, the more iconic or important the words are, the more likely this is to constitute a “substantial part” of the work.
We’re not gonna take any copyright infringement of our music
Of more practical relevance is the situation where a politician uses a song in their campaign without permission from the band or artist. This is increasingly common both in Australia and overseas: Clive Palmer was ordered to pay $1.5 million in damages after using a rewritten version of We’re Not Gonna Take It in political advertisements, REM famously asked Donald Trump to stop using its music for his campaign (Neil Young had similar complaints), and Eminem successfully sued the New Zealand National Party for use of a ‘soundalike’ version of Lose Yourself.
Where the politician (or the venue playing the music) has a valid licence to the song in question, and uses the song within the scope of that licence, there is unlikely to be much that the artist can do from a copyright infringement perspective. The licence need not be from the artist, but would often be from OneMusic (formerly APRA AMCOS), the Australian music licensing body. As such, music may be licensed to a politician without knowledge of the artist.
Interestingly however, OneMusic’s standard public performance music licence does not cover the use of music at political events “if the music is used in a way that suggests an affiliation with a political party”. OneMusic suggests that politicians obtain written approval from both songwriters and recording artists before using their music in such a way.
As such, if a song is used as a prominent part of a campaign (which may require more than, for example, merely playing the song in the background in the lead-up to a rally), this may not be covered by a OneMusic licence. Where the use of the music is not licenced (either because it falls outside the scope of the licence or because there is no licence at all), this would usually be a relatively straightforward case of copyright infringement. There is no defence to copyright infringement for political use.
Lose yourself in the other possibilities
Even where a politician’s use of a song is licensed, the artist may be able to allege that this use infringes their moral rights. These unassignable rights, granted to authors under Australian copyright law, include the right not to have their work used in a way that is “prejudicial to the author’s honour or reputation”.
Where a song is used by a politician whose politics do not align with the views of the artist, the artist might argue that this is prejudicial to their honour and infringes their moral rights, regardless of whether the use was licensed. The likelihood of this argument succeeding would depend on the context in which the song is used and the artist’s public image.
If the use of the song suggests that the artist has endorsed the politician, then this may also be a breach of the Australian Consumer Law and/or common law “passing off”, both of which prevent a person or company from falsely representing that their goods or services are affiliated with another person when this is not the case.
Finally, if the political campaign references the band or artist name in their campaign, and if this name is registered as a trade mark, then aside from issues relating to false endorsement, this might also constitute trade mark infringement. However this is not straightforward because, depending on how the trade mark is used, use for political advertising purposes might fall outside the typical commercial context for trade mark infringement.
The final note
There are many avenues open to a musician seeking to prevent the use of their music in a political campaign. Australia’s robust consumer protection laws and the unassignable moral rights granted to artists under Australian copyright law provide potential recourse for disgruntled musicians, even though Australia does not have a general legal right to control the use of one’s image.
However, these areas of law require something more than mere use of a song. In the case of moral rights, the use of the song must be in a derogatory manner. In the case of the Australian Consumer Law, the use of the song must indicate a connection between the musician and the politician (for example, that the musician endorses the politician). Demonstrating either requirement is not a simple task, and will depend upon the context in which the song is used.
It will no doubt be a relief to artists that their options for resisting the politicisation of their work are not extinguished just because the use of their music was validly licensed, as they may have recourse in areas of the law other than traditional copyright infringement. This issue is likely to arise again in the lead-up to the 2022 Australian Federal Election, and it will be interesting to see whether artists attempt to rely upon any of these arguments in seeking to prevent a politician from using their music.