Last August, after pulling the public performance rights for his songs, Neil Young sued Donald Trump’s campaign for copyright infringement when Young’s music was used during a rally in Tulsa, Oklahoma without a licence. It appears that Young does not wish to be affiliated with Trump and does not want to create the impression that he supports Trump’s behaviour or politics. Are there other ways for artists to control the use of their music?
US False-Endorsement Claim
In the US, section 43(a) of the Lanham Act, the US federal trademark law, provides artists with the ability to challenge campaigns for a false impression of endorsement. In effect, false endorsement involves the unauthorized misuse of a celebrity’s identity in relation to any uniquely distinguishing characteristic of the plaintiff (at para 626), which is likely to confuse consumers into thinking that the celebrity is sponsoring or approving the defendant’s product or brand (at para 1110).
However, this provision’s applicability to copyrighted work was limited in Dastar Corp v Twentieth Century Fox Film Corp, where the court was concerned that the the creator’s identity and their communicative product would over-extend the Lanham Act, causing it to conflict with copyright law (at para 33). However, rather than focusing on confusion vis-à-vis a celebrity’s sponsorship or approval, the case involved reverse passing off and a confusion analysis regarding the origin of tangible goods (at para 44). It will be interesting to see how courts will navigate this issue in the future.
Artists can also try challenging politicians through US “right of publicity” laws. While their scope differs between states, they generally prevent “the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspect of one’s persona.”
Misappropriation of Personality in Canada
Under Canadian common law, false endorsement claims can be qualified as a “misappropriation of personality,” the protected interest under which is the exclusive use of an individual’s own identity, as “represented by his name, reputation, likeness or other value.” Along with the necessary element of the commercial exploitation of an individual’s personality, Gould Estate v Stoddard Publishing Co went further, stating that “the tort of appropriation of personality is restricted to endorsement-type situations” (at para 14). However, it is unclear whether a politician’s use of an artist’s song during a political event would be considered commercial exploitation.
What about provincial privacy acts? Privacy has been described as “a right to be let alone.” Manitoba, Newfoundland and Labrador, and Saskatchewan offer a general tort for an invasion of privacy within their privacy statutes, and an appropriation of personality is a provided example of the general tort (at 3). Artists making an appropriation of personality claim in these provinces must conform to the requirements of the general tort, and in demonstrating an appropriation of personality, the use of the person’s name, likeness, or voice must have been for the defendant’s gain or advantage (at 4). This is not restricted to commercial gain, but the appropriation had to have been intentional (at 5). In BC, an appropriation of personality is a separate tort from the general tort for an invasion of privacy and does not encompass an intentionality element, but the claim is limited to acts motivated by commercial purposes, and the traits that can be appropriated are confined to the individual’s name or portrait. An appropriation of personality claim under Quebec’s Civil Code appears to exclude the need to indicate a commercial purpose. Further, intent does not appear to be a relevant concern, and the traits involved can include the individual’s name, likeness, or voice (at 15-16).
Moral Rights Infringement in Canada
Under moral rights, an artist’s work is considered an extension of their personality deserving protection and less commercial value is placed on the relationship between the artist and their work (at para 15). Under section 28.2(1)(b) of the Copyright Act, artists can claim there has been a moral rights infringement to the right to the integrity of their work where, to the prejudice of the artist’s honour or reputation, the work is used in association with a cause or institution. The assessment of how an artist’s honour or reputation is affected is both highly subjective and objective, requiring the artist’s personal opinion, as well as public or expert opinion (at para 49).
If all else fails, a non-litigious option is to openly dispute a politician’s use of a song by putting pressure on their campaign through the power of a devoted fanbase. If the ubiquity of social media soapboxes and the transparency of public opinion have shown us anything, it is that bad publicity, ultimately, rules.
Written by Esther Kim, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.