BADA OLADUNNI IKENNA
HARVARD COPYRIGHT X EXAMINATIONS 2019
NAME OF CANDIDATE: BADA, OLADUNNI IKENNA
ANSWERS
QUESTION 1:
THE LEWANDOSKI’S CASE
This hypothetical case revolves around copyright infringement, doctrine of fair use,
licensing and the US Lanham Act
In the context of copyright infringement, an unauthorized use of a work or material is any
unauthorized reproduction, distribution, performance, public display or transfer to a
derivative work without the copyright owner's permission.
An infringement occurs under all of the following three conditions:
The owner must hold a valid copyright.
The alleged infringer must be able to access the copyrighted work.
Duplication of the copyrighted work must occur beyond exceptions. If an exception
does not apply, permission is requested by the person seeking to use the work.
From the foregoing, it is evident that Donald trump is guilty of infringing on Bruce
Springsteen’s work. This is because the song was evidently used without the owner’s
consent. The above 3 conditions shall now be explained.
Republican presidential nominee Donald Trump, whose 2016 campaign was propelled by
voters who were angry with establishment politicians and the ruling political class, used an
appropriately angry campaign song: "We're Not Gonna Take It." The heavy-metal song was
written and performed by the 1980s hair band Twisted Sister.
The lyrics tapped into the anger felt by many of Trump's supporters:
We'll fight the powers that be,
Just don't pick our destiny,
'Cause you don't know us,
You don't belong.
We're not gonna take it,
No, we ain't gonna take it,
We're not gonna take it anymore.
There are a multitude of issues that arise for choosing and using particular songs in
association with a political campaign. The most obvious issue is whether the unauthorized
use of a song by Trump is copyright infringement. Alas, that question alone is not dispositive,
,nor does it provide general guidance to future wannabe Presidents. There are also issues of
licensing and permission. There are issues of trademark rights and publicity rights. There are
potential contractual issues. And that only begins to address the issue of “fair use.”
Meanwhile, even if all of those issues are addressed, the artist may still claim some form of
hybrid Lanham Act or “false sponsorship” or “false endorsement” claim under federal law.
The Rolling Stones are not the only high-profile musical act that vigorously protects its
image.
After all, this is a legal issue that has existed for over 30 years, yet there still is no clear
answer.
Copyright Infringement?
It is important to note that musical works of art are subject to copyright protection. Even if a
potential government employee seeks to use it. Of course, there are a few more specific areas
to address underneath the larger umbrella of “copyright” issues. First, pursuant to 17 USC
102, there are multiple copyrights within a single song. The sound recording itself is
copyrighted. The underlying musical composition is another separate copyright. Often the
sound recording copyright is owned by the record company, while the songwriter may own
the composition (though this may often be assigned to the record company, too). Assuming
fair use is not an option, a separate license must usually be acquired before a sound recording
can be used by a third-party. The failure to acquire a license will often result in an
infringement claim from the copyright owner. In the David Byrne’s case, Florida Governor
Charlie Crist, had to pay David Byrne a hefty sum in settlement after improperly using a
Talking Heads song in commercials during a U.S. Senate campaign in 2010. Nevertheless,
based on the fact that artists may not own all of the copyrights in their own works, getting the
artist’s permission may in limited instances be irrelevant to the copyright analysis.
There is also the issue of public performances. Many of these so-called campaign songs are
used or played at rallies or conventions or large gatherings. This type of use is called a
“public performance” under copyright law and the requisite license is required. These
licenses are often governed by a performing rights society organization, such as ASCAP,
, BMI, or SESAC. ASCAP has even provided guidelines for licensing music in political
campaigns.
Politicians do not just use songs at public events, however. They are often used in
advertisements and promotional videos. The use of a sound recording in a video requires
what is known as a “sync” license, as it includes rights to multiple copyrights in an audio-
visual presentation. The use of songs in negative or attack-based campaign advertisements is
its own mess of legal issues and the personal politics of the artist. Just ask Cyndi Lauper
about the proper use of “True Colors.” Nothing is ever clear-cut in politics, including
copyrights.
The next question to be asked is what about the defence of fair use? Any time a copyright
issue comes up, the most popular question is “does fair use apply?” It is a valid question,
especially in instances where the third-party cannot acquire the artist’s permission to use the
musical work(s) in question. Fair use may only apply in limited instances for purposes of
“criticism, comment, news reporting, teaching… scholarship, or research.” The use must also
be “transformative” to accomplish one of these goals. In the context of a political campaign,
this is usually accomplished through commentary or parody. For example, Donald Trump’s
use of the Rolling Stones’ “Start Me Up” is primarily for the purpose of hyping up the crowd
or setting the tone for his appearance. It is not a commentary on his political positions or the
like. This would most likely undermine any claims for “fair use” of a copyrighted work.
In fact, political campaigns rarely can rely on “fair use” as a basis for using a particular song
if/when an artist objects to the politician or the message being conveyed through the song.
On the issue of licensing, in instances where the artist’s permission is acquired or not
needed, a political campaign likely needs to acquire license rights to the song. As mentioned
above – ASCAP, BMI, and SESAC exist to provide public performance rights. But there are
typically no blanket one-size-fits-all type licenses that a campaign can acquire. It must be
often done piecemeal to be done correctly. The campaign may also need to acquire a license
from the publisher and the record label for various “use” licenses. Any campaign video will
require a “sync” license. Any media entity that transmits or publishes a campaign video using
HARVARD COPYRIGHT X EXAMINATIONS 2019
NAME OF CANDIDATE: BADA, OLADUNNI IKENNA
ANSWERS
QUESTION 1:
THE LEWANDOSKI’S CASE
This hypothetical case revolves around copyright infringement, doctrine of fair use,
licensing and the US Lanham Act
In the context of copyright infringement, an unauthorized use of a work or material is any
unauthorized reproduction, distribution, performance, public display or transfer to a
derivative work without the copyright owner's permission.
An infringement occurs under all of the following three conditions:
The owner must hold a valid copyright.
The alleged infringer must be able to access the copyrighted work.
Duplication of the copyrighted work must occur beyond exceptions. If an exception
does not apply, permission is requested by the person seeking to use the work.
From the foregoing, it is evident that Donald trump is guilty of infringing on Bruce
Springsteen’s work. This is because the song was evidently used without the owner’s
consent. The above 3 conditions shall now be explained.
Republican presidential nominee Donald Trump, whose 2016 campaign was propelled by
voters who were angry with establishment politicians and the ruling political class, used an
appropriately angry campaign song: "We're Not Gonna Take It." The heavy-metal song was
written and performed by the 1980s hair band Twisted Sister.
The lyrics tapped into the anger felt by many of Trump's supporters:
We'll fight the powers that be,
Just don't pick our destiny,
'Cause you don't know us,
You don't belong.
We're not gonna take it,
No, we ain't gonna take it,
We're not gonna take it anymore.
There are a multitude of issues that arise for choosing and using particular songs in
association with a political campaign. The most obvious issue is whether the unauthorized
use of a song by Trump is copyright infringement. Alas, that question alone is not dispositive,
,nor does it provide general guidance to future wannabe Presidents. There are also issues of
licensing and permission. There are issues of trademark rights and publicity rights. There are
potential contractual issues. And that only begins to address the issue of “fair use.”
Meanwhile, even if all of those issues are addressed, the artist may still claim some form of
hybrid Lanham Act or “false sponsorship” or “false endorsement” claim under federal law.
The Rolling Stones are not the only high-profile musical act that vigorously protects its
image.
After all, this is a legal issue that has existed for over 30 years, yet there still is no clear
answer.
Copyright Infringement?
It is important to note that musical works of art are subject to copyright protection. Even if a
potential government employee seeks to use it. Of course, there are a few more specific areas
to address underneath the larger umbrella of “copyright” issues. First, pursuant to 17 USC
102, there are multiple copyrights within a single song. The sound recording itself is
copyrighted. The underlying musical composition is another separate copyright. Often the
sound recording copyright is owned by the record company, while the songwriter may own
the composition (though this may often be assigned to the record company, too). Assuming
fair use is not an option, a separate license must usually be acquired before a sound recording
can be used by a third-party. The failure to acquire a license will often result in an
infringement claim from the copyright owner. In the David Byrne’s case, Florida Governor
Charlie Crist, had to pay David Byrne a hefty sum in settlement after improperly using a
Talking Heads song in commercials during a U.S. Senate campaign in 2010. Nevertheless,
based on the fact that artists may not own all of the copyrights in their own works, getting the
artist’s permission may in limited instances be irrelevant to the copyright analysis.
There is also the issue of public performances. Many of these so-called campaign songs are
used or played at rallies or conventions or large gatherings. This type of use is called a
“public performance” under copyright law and the requisite license is required. These
licenses are often governed by a performing rights society organization, such as ASCAP,
, BMI, or SESAC. ASCAP has even provided guidelines for licensing music in political
campaigns.
Politicians do not just use songs at public events, however. They are often used in
advertisements and promotional videos. The use of a sound recording in a video requires
what is known as a “sync” license, as it includes rights to multiple copyrights in an audio-
visual presentation. The use of songs in negative or attack-based campaign advertisements is
its own mess of legal issues and the personal politics of the artist. Just ask Cyndi Lauper
about the proper use of “True Colors.” Nothing is ever clear-cut in politics, including
copyrights.
The next question to be asked is what about the defence of fair use? Any time a copyright
issue comes up, the most popular question is “does fair use apply?” It is a valid question,
especially in instances where the third-party cannot acquire the artist’s permission to use the
musical work(s) in question. Fair use may only apply in limited instances for purposes of
“criticism, comment, news reporting, teaching… scholarship, or research.” The use must also
be “transformative” to accomplish one of these goals. In the context of a political campaign,
this is usually accomplished through commentary or parody. For example, Donald Trump’s
use of the Rolling Stones’ “Start Me Up” is primarily for the purpose of hyping up the crowd
or setting the tone for his appearance. It is not a commentary on his political positions or the
like. This would most likely undermine any claims for “fair use” of a copyrighted work.
In fact, political campaigns rarely can rely on “fair use” as a basis for using a particular song
if/when an artist objects to the politician or the message being conveyed through the song.
On the issue of licensing, in instances where the artist’s permission is acquired or not
needed, a political campaign likely needs to acquire license rights to the song. As mentioned
above – ASCAP, BMI, and SESAC exist to provide public performance rights. But there are
typically no blanket one-size-fits-all type licenses that a campaign can acquire. It must be
often done piecemeal to be done correctly. The campaign may also need to acquire a license
from the publisher and the record label for various “use” licenses. Any campaign video will
require a “sync” license. Any media entity that transmits or publishes a campaign video using
