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The Copyright Issue of Using Music in Election Campaigns

09/29/2015 12:03 EDT | Updated 09/29/2016 05:12 EDT
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When Donald Trump launched his recent bid for the U.S. presidency, he made his entrance to the soaring notes of Neil Young's 1989 classic "Rockin' in the Free World." His entrance was made all the more dramatic because it was immediately followed by an angry complaint from Young's manager alleging that Trump had failed to obtain permission to use the song in association with his election campaign.

Had this same scenario occurred north of the 49th Parallel, Canadian copyright issues would have been equally engaged. This is due to the distinction between two kinds of rights held by copyright owners: economic rights and moral rights. In this regard, any Canadian politicians seeking to use a musical work at a public event should be aware of the legal issues that may arise when a work is directly linked with a political party or message.

Whenever musical works are publicly performed in Canada, licence fees have to be paid to SOCAN, the copyright collective that represents songwriters and musical publishers in respect of their public performance rights. Nonetheless, while these fees will satisfy a copyright owner's economic rights under the Copyright Act (the "Act"), they do nothing to prevent composers and other musical artists from bringing legal claims for the infringement of their moral rights.

Moral rights protect the intangible personal interests owned by the creator of an original work. This includes, pursuant to section 14.2 of the Act, "the right to the integrity of the work." Moreover, further to section 28.2, the integrity of a work is deemed to be infringed if, to the prejudice of the owner's honour and reputation, it is "used in association with a product, service, cause or institution."

Finding evidence of actual harm

Any legal analysis of a claim for the infringement of moral rights will include both subjective and objective perspectives. While a copyright owner may consider a particular use prejudicial to his or her honour or reputation, the Court must assess the reasonableness of this assertion by looking for actual evidence of harm to the artist.

A composer may consequently deem a political candidate's use of his or her musical work as prejudicial if he or she does not share the political views being promoted or does not wish to be perceived as endorsing the political party concerned. Actual harm to the artist's honour and reputation will, of course, be easier to demonstrate if the work is used as a campaign theme song or political anthem.

To avoid the possibility of infringing an artist's moral rights, any political candidate would be well advised to ensure that any moral rights' issues are addressed. Because moral rights are personal rights, they can only be "waived in whole or in part" by the creator. The candidate would therefore have to contact the artist directly to obtain either authorization for the use of the work in association with the political campaign, or an agreement that the artist will refrain from asserting his or her moral rights with respect to the campaign's use of the musical work.

As the current federal campaign heats up, political candidates may be tempted to make a grand entrance to the dulcet sounds of their favourite Canadian artist. But such candidates should be forewarned that, if they do so without permission, they run the risk of winning a seat in a courthouse rather than in the House of Commons.

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In Photos: Canada Election 2015