All the Legal Stuff About Donald Trump using Queen’s “We Are the Champions” You Didn’t Want to Know

The iconic rock band Queen doesn’t like Donald Trump. Sadly for Queen, he likes them.

Is This the Real Life? Is This Just Fantasy?

Trump used their super famous song “We are the Champions” to walk onstage at the Republican National Convention.

trumpisaloser

Bombastic and crass in a particularly Trumpian, 80s wanna be cool way? Sure. Illegal? Probably not.

Queen responded (like your grandma who always signs her Facebook posts “-Grandma”) with:

This isn’t the first time. Maybe he’s just a poor boy, he needs no sympathy, but a month ago, Queen’s Brian May blogged about his anger that Trump uses his songs.

Buddy You’re a Boy Make a Big Noise

As far as permission to use the song goes, Queen got blood on its face, huge disgrace. According to Sean Spicer, a big honcho at the RNC, they got a license.

Campaigns, like other big events, buy licenses from organizations that maintain an extensive roster of famous songs. The organization lists songs by its members, the owners of the copyrights on the music. The organization then collects the licensing fee, passes that along to the copyright owners, and enforces licensing violations on behalf of the copyright owners. Easy peasy. The system works quietly behind the scenes and everyone is happy, or at least not unhappy enough to complain much. ASCAP and BMI are the two big players in this country. Sure enough, “We are the Champions” is licensed by BMI, charmingly to someone named “Mercury Frederick.”  It’s always good to confirm things that should be route with the Trump campaign, but I think we can safely assume by BMI’s silence that some responsible party at the RNC did, indeed, license the music. If so, Trump is not in violation of the copyright.

God Knows, God Knows I Want to Break Free

Even if the campaign did not buy a license, whether or not the use of the song would fall into the “Fair Use” exception is open to debate.

Fair Use is a defense to copyright violations. Basically, if someone sues a person for using their song, when that case gets to court, the person being sued will say “Yes, I used the song, yes it belongs to this other person, but it’s ok because it’s fair use.” And if the judge or jury agrees, another copyright case bites the dust.

America has broad fair use standards in comparison to much of the world because America values free speech to the extent of stepping on the toes of copyright owners. This has only gotten stronger in recent years, with the Internet being the Wild Wild West of copyright infringement under the banner of fair use, but I digress.

Judges look at four factors when considering fair use: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market.

Because campaigns are (at least until Trump) shy about negative publicity, these factors haven’t been fully tested in court in the context of political campaigns, but they likely weigh in favor of use of snippets of songs by a campaign. First, the nature of the use is political speech, which is the type of speech passionately protected by First Amendment caselaw. Secondly, the campaigns tend to use just portions of the songs for the walk on. Nobody wants to sit through all five minutes of “We are the Champions” before listening to Trump blather, I mean, speak. So the entire song is not used, which is a big factor. Finally, it would be hard to argue that using a portion of a song in a campaign somehow cuts into the sales of the song, which is another big factor.

Pressure Pushing Down on Me, Pressing Down on You

Probably the real problem to Brian May and the rest of Queen is the very notion of being associated with someone like Trump. They’re in the terror of knowing what [Trump] is about, watching some good friends screaming “Let me out.”

This is more of a trademark issue than a copyright issue. There are fancy legal terms associated like “Lanham Act” and “Right of Publicity,” but the basic crux of the issue is whether or not the use of the song would trick people into thinking the band supports the candidate. Think of it in terms of purses. If I stick a Gucci label on a knock-off purse, I’m violating the trademark because a purchaser will think that purse came from Gucci. (Or if they bought it on a street corner in New York, they won’t think so but maybe their friends will.) I’m basically stealing the good name of Gucci and using it to my own ends.

For a band or celebrity to sue under this theory requires them to convince a jury or judge that the people listening in the crowd were confused into thinking that Queen endorses Trump. That seems like a long shot in this context, don’t you think?

Carry On, Carry On As if Nothing Really Matters

An interesting wrinkle (interesting at least to copyright nerds) is that Queen is a British band. Just as copyright law in America tends to bend in the direction of encouraging free speech, copyright law in England has a slightly different flavor. They have something called moral rights, which do not exist here. This concept gives the copyright holder much greater control over the association of their work, protecting the reputation and person of the copyright holder. This includes the right to be credited when the work is used and the right to object to derogatory treatment, distortion, or mutilation of the work.

Queen would probably feel that Trump’s use of a portion of their song is mutilation of their song.

I am not a scholar of British law, so I do not know if these laws would apply to Trump’s use of Queen’s songs were they occurring in the UK, but I’m sure the thinking informs the background of Brian May’s objections.

 

Apple Patents Super Mega On the Fly Copyright Infringement Blocker

Ok. That’s not what they call it. But that is essentially what it is.

Apple patented technology that allows venue owners to use an infrared device that would interact with the iPhone camera and stop people from recording or taking photos.

It’s easy to see who would want this. Adele, that’s who. She seems like she would be the first in line to stop people from bootlegging her concerts.

Instead of using the DMCA to police YouTube, Vimeo, and such sites after the fact, this would enable Adele to belt out “Hello” and block it from being recorded at the outset.

With the rise of live streaming apps like Periscope, you could see how a copyright owner would want this even more. These apps make it possible for someone – anyone – to livestream a concert to thousands who didn’t bother to buy a ticket. This technology could conceivably stop that.

There are serious concerns, though. It’s not hard to imagine situations where such technology would be used on behalf of the dark side. Blocking the bootlegging of copyrighted music or video is one thing. Blocking phones from recording a protest is another. And it’s not hard to imagine police departments having mobile infrared devices to stop people from recording encounters with citizens. That’s just in the United States. Putin would probably put one on every street corner in Russia.

The second issue, of course, is safety. The same device that blocks us from live streaming that Led Zeppelin tribute band would also block concert goers from sending photos and video to police should a catastrophe or terrorist attack happen. And what about apps that use the camera, like barcode scanners or translators?

Finally, and I suspect Apple knows this deep inside their little hearts, blocking the camera would be a sure way to get droves of people to buy Droids. In order for this technology to work, it would have to be universal. The only way to make it universal would be to pass a law requiring all cell phones to have the technology.

Some of these issues could be solved with legislation and/or court cases, in the ongoing march of technology and free speech.

It’s an intriguing idea, one that probably pleases copyright owners from Lin-Manuel Miranda on Broadway to Taylor Swift playing the Hollywood Bowl. Protecting your work at the outset makes sense instead of playing whack a mole after the fact, but we’ll see if it sees the light of day or languishes at the PTO with Apple’s other red headed stepchild patents.

Read more, including Forbes raising the issue of securing secret places from spies with this technology.

Photo: Manel Torralba/Flickr Creative Commons

It all Started with a Story

It all started with a story. I come from a long line of storytellers, my father telling the one about how he convinced his buddies Bigfoot was lurking in the high Sierras in the 1960s, my grandmother telling the one about my aunt vomiting all over the posh Claremont Hotel in front of  horrified society folks, my grandfather twisting gnarled fingers around his cane as he recounted his battle on WWII Peleleiu.

Some of the stories are true as a halftrack on the coral beach. Some grow like cloud castles from just a small grain of truth.

We do it in our own family, telling and retelling stories, sitting around the table, in the car, in front of friends. The time my husband was jailed in Peru (he got out), the time the house got struck by lightning (on our anniversary, no less!), the time the Dali Lama petted my husband’s cheek (he was quirky).

We love stories of others too: the books that inspire (Les Miserables) and amuse (Carry On, Jeeves); the movies that shine light (The Tree of Life) or help us through hard days (Galaxy Quest), the songs that excite (Hamilton’s The World Turned Upside Down) or soar (anything by Whitney Houston!).

As a television and movie critic, I am increasingly amazed at the passion, talent, earned skill, and old fashioned hard work that goes into making stories in the modern era. It takes decades of training, not to mention significant financial investment, to become a filmmaker, a photographer, a songwriter, a screenwriter, a graphic artist, a creator. I have come to deeply respect those who make art and/or entertainment. It’s not easy.

They tell our stories.

Stories can be shared. “You’ll never guess what happened to my aunt’s friend’s cousin!” They can be recommended. “Seriously. Watch ‘No Country for Old Men.'” But it just feels wrong if they are taken.

The Dali Lama petted my husband’s cheek, not someone else’s. Jean Valjean came out of the imagination of Victor Hugo, not some schmuck at a Starbucks.

I think this is why copyright matters to me. There is an integrity to it. An honesty to owning your own work, your own art, your own story, against all the world.

Sure there are nuances and edges to that right, and that’s where the fun comes in.

I’m Rebecca Cusey. I am a third year law student at Antonin Scalia Law School at George Mason, a writer, a lover of art, and a person fascinated with how the law intersects with that. I’ll be blogging here thanks to the good people at the Copyright Alliance. Here we go.