Copyright© – it’s complicated, the experts say

South African Senior Associate and Trademark Attorney at Adams and Adams, Nicole Smalberger, looked into the matter of well-known musician Neil Young, who is currently enveloped in a legal tussle with President Donald Trump.

Young took up litigation with Trump in a matter that relates to the presidential campaign and the use of the artist’s music at the Trump rallies. This music includes the songs ‘Devil’s Sidewalk’ and ‘Rockin’ in the Free World’.

Young’s first took issue with the use of his music by the Trump campaign in 2016 and is seemingly of the view that Trump’s campaign has no ‘free world’ spirit at all, but rather that it is a campaign “of ignorance and hate”, and not one that Young wants his music to be associated with.

According to Young, the Trump campaign has been using his songs without his consent, thereby infringing on his copyright. A case of copyright infringement has been filed in the US. District Court in the Southern District of New York on August 4.

This is in addition to the allegation that the appropriate licences have not been secured from the relevant licensing bodies in the United States to broadcast the songs publicly at the rallies.

Let’s consider this issue, from a South African law perspective.

In the South African Copyright Act of 1978 (“the Act”), a “musical work” means “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”.

More copyright works are at play in a song, as the lyrics of a song would constitute a “literary work”, and a particular recording of it would constitute a “sound recording”, both of which are also recognised and protected works in terms of the Act.

When we look at the Young dispute, he will be entitled to claim copyright as the songs are original and would fall under the protection of the Copyright Act.

The Act does not require a work to be entirely novel to be considered original, and the courts have held that the originality requirement will be met where the artist’s individual skill and effort went into the creation thereof. In many cases, the author or creator of the work is the owner of the copyright in both musical and literary works.

In the case of sound recordings, the person by whom arrangements were made for the making of the sound recording, owns the copyright

The owner of the copyright has the exclusive right to authorise others to use the work for the artists’ own personal gain or profit, and no third parties can make reproductions or adaptions to the work without the author’s consent.

At face value, one would assume that Mr Young’s copyright has indeed been infringed by the Trump campaign. However, one must consider whether the defence of “fair dealing” might apply.

When someone buys a song, there is an implied licence in play the purchaser will listen to and, in that manner, reproduce the song and sound recording.

This, however, does not mean that the purchaser has free reign to play music publicly. These situations are dealt with in South Africa by way of Samro (South African Music Rights Organisation) licences.

Samro collects licence fees, which are distributed to artists as royalties. For example, if you own a restaurant and want to play your CDs in the background as “mood music”, you must obtain a licence from Samro. You cannot simply publicly broadcast the music.

One of the allegations made by Young is that the Trump campaign has not sought the appropriate licences from the equivalent bodies in the US.

It is doubtful that the Trump campaign will be able to allege that its use of the music constitutes fair dealing.

Young’s music is being used publicly in relation to a political campaign, which means his personality property rights also come into play as his music is closely associated with him – not only as an artist but also an individual, and he has not agreed to its use by the Trump campaign.

The Neil Young brand may suffer reputational damage if wrongly linked to a campaign which Young feels does not at all align with his image, what he represents and his views.

In terms of copyright, Section 20 of the Copyright Act ensures protection of artists’ “moral rights”. Artists can object to any form of distortion, mutilation or other modification of their work, where such action is or would be prejudicial to their honour or reputation.

Moral rights are personal rights, which stay intact even if the author of copyrighted work transfers ownership in the work to another.

There is, therefore, an acknowledgement in the law of the link between the artist and their art, and a sense that the integrity of both should be protected.

The Act refers to changes made to the copyrighted work and, although Young may feel that the Trump campaign’s mere use of his music constitutes a “mutilation”, a court may not necessarily agree.

The dispute between Young and Trump is still in its early stages, but Trump’s campaign has been referred to in the past as one with deep pockets.

Political parties should take note of this case and remember that the songs and other copyright works they use in their campaigns are protected in terms of copyright law, and that motivated copyright owners may very well take legal action to restrain any unauthorised use of their works.

Written by Nicole Smalberger and verified by Gérard du Plessis