Thu, 30 Nov 2023

Paul Langlois, a guitarist for Canada's The Tragically Hip, was more than unhappy when recently alerted via Twitter that his band's music was heard at a Conservative campaign event with Pierre Poilievre, and in a series of tweets he resolved to stop it.

However, shortly after Langlois's tweet, the band issued a statement clarifying that the venue in question was licensed by the Society of Composers, Authors and Music Publishers of Canada (SOCAN), a Canadian performance rights organization.

The statement noted it meant "the venue pays a fee to ensure artists and musicians are compensated appropriately when music is played on site. As such, specific permissions were not required in this case."

The statement also said:

There is a distinction between deliberate use of a song to support a particular campaign agenda or politician and incidental music in the background at a social function hosted by a political party.

In this case, the song was being played in the background at the venue.

Musicians, politics and patronage

While musicians' complex relationships with political agendas and authorities extend well back in western history to classical heavy hitters, our contemporary era of pop music reveals no shortage of case studies.

When a Republican campaign in the United States used Twisted Sister's "We're Not Gonna Take It," in a tweet, lead singer Dee Snider tweeted back in protest "write your own damn song" and said the party missed the point of the lyrics.

In 2020, The Rolling Stones were prepared to sue Donald Trump to stop him using their music at rallies.

R.E.M., M Pop and a variety of other big names have also spoken out against some political uses of their music.

Most of these objections are directed at conservative politicians.

Lorraine Segato, of Canada's Parachute Club, was a friend of former NDP Leader Jack Layton. Segato was happy to have Layton use her band's "Rise Up" as an NDP campaign song, and went as far as to sing it at Layton's state funeral.

In 2015, Rob Baker, Paul Langlois's Tragically Hip bandmate, publicly supported the Liberal Party of Canada.

What are the legal considerations?

Should artists have control over their art once it's "sold?" Do they?

In law, the creator is always the first owner, who can then license a work, either exclusively or non-exclusively, usually to a studio or a collective society like SOCAN in Canada that collects royalties for them.

This licensing is usually necessary for distribution, and is typically non-exclusive to a body like SOCAN. A studio often gets the exclusive monetary rights.

A good example of an artist losing control of their catalogue (and then moving to regain it by re-recording songs) is Taylor Swift. However, musicians still maintain the right to protect their reputation and their brand.

In Canada, that right is formally recognized by the artist's "Moral Rights," Sec. 14.1 of the Copyright Act.

This section grants the author the "right to the integrity of the work" and to have their name associated with it.

In the U.S., copyright law only includes moral rights for works of visual art. While U.S. authors of works other than visual art are entitled to having their name associated with the work (what's known as "attribution,") they aren't given the right to control the work's distortion or mutilation.

In Canada, the moral rights of the author can be waived, but they cannot be assigned or licensed to another party. So, if an author waived the rights in the context of an exclusive license, they might lose the right to control how their music is used.

Case: Eaton Centre geese

There is a clear precedent, similar to the Tragically Hip incident, in the Supreme Court of Canada case Snow v the Eaton Centre Ltd..

The Eaton Centre purchased the sculpture installation of a flock of Canada geese by sculptor Michael Snow.

When the Eaton Centre wanted to put red bows on the geese at Christmas, the artist objected to the commercialization of the work. Snow's lawyer said the artist's naturalistic composition had been made to look ridiculous by the addition of ribbons and suggested adding bows was not unlike dangling earrings from the Venus de Milo.

Social/ethical/financial ramifications?

Whatever else might be done about the unwanted use of their music, many artists are eager to distance themselves from particular political brands.

One might expect these musicians could benefit from media coverage of these disputes or increased social capital with politically like-minded fans or potential fans.

However, as both R.E.M. and The Chicks discovered, many listeners don't appreciate musicians taking political stances.

Any legal action to challenge music use costs musicians money, even a cease-and-desist letter from a lawyer. A musician just starting out wouldn't be able to afford it - but on the other hand, a politician is more likely to play a recognizable song from a popular artist.

Record labels also generally want to protect the brand of the musician and might be willing to help fund legal action.

Subject to distortion?

What does seem clear is that politicians should seek an artist's permission to use their music in a campaign, and perhaps the artist's help in understanding the message behind their music to avoid both embarrassment and bad media coverage.

In Canada, musicians can assert their moral rights when their work is subjected to a specific distortion that results in perceived harm to their reputation.

But it's unlikely they would demand their work be taken off of playlists.

Authors: Robbie MacKay - Lecturer in Musicology, Dan School of Drama & Music, Queen's University, Ontario | Lisa Macklem - PhD Candidate, Law, Western University The Conversation

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