Politics and pop music

Music can set the tempo of a political campaign. But what happens when a politician decides to march by the beat of a different drummer, without asking for their permission first? This question has come up recently in American politics, when a video of Celine Dion’s “My Heart Will Go On” was broadcast at a Trump campaign rally.  Celine Dion followed up with an Instagram post stating her team had not authorized such use of her song.¹

This article explores fair dealing and moral rights in Canada, and how they intersect with Canadian politics.

Understanding Fair Dealing

In order to perform a song or any substantial part thereof in Canada without infringing the owner’s copyright, the necessary licenses and permissions must be obtained. However, if the use falls under an exception to infringement, such as the “fair dealing” exception, no licenses or permissions are required.

Fair dealing permits the limited use of copyright protected material without the risk of copyright infringement and without having to seek the permission of copyright owners. It is intended to provide a balance between the rights of creators and users.

Fair dealing is, however, limited to specific purposes, namely, research, private study, criticism, review, news reporting, education, parody and satire.²

For political campaigns, this means that playing a popular song at a rally does not typically qualify as fair dealing. If a song is used to criticize a political opponent or provide social commentary, such use may fall under the categories of criticism, parody or satire. Arguably, however, most political uses of music are more about creating a connection with voters than delivering a critique. Fair dealing, thus, may not always provide a defense to copyright infringement in political contexts.

Moral Rights

Moral rights protect the personal rights of artists and are separate from economic rights. Moral rights treat the artist's oeuvre as an extension of his or her personality, focusing on the artist's right to both the integrity of the work and their authorship of it.³

In Canada, whether fair dealing provides an exception to moral rights infringement is not clearly stated in the Copyright Act. The statutory fair dealing exceptions appear to shield a user from liability for infringement of traditional copyright, but not from claims of moral rights infringement.⁴

While the statutory provisions on criticism, review and news reporting do make non-explicit references to the moral right of attribution as requirements for successful invocation of the respective exceptions, the provision on parody, satire and research makes no mention of moral rights, and none of the fair dealing provisions mention the moral right of integrity whatsoever.⁵

This means that if a politician uses an artist’s song in a way that is covered by fair dealing (i.e., for criticism or parody), but in doing so distorts or modifies the song, or uses the song in association with a product, service, cause or institution in a way that violates the artist’s moral rights, the artist may have a claim for moral rights infringement.⁶

Conclusion

While the Copyright Act may provide some leeway for political campaigns to use copyrighted music without permission for limited purposes such as criticism or parody, it does not expressly provide blanket protection from liability for moral rights infringement. Moral rights introduce an additional layer of protection for artists, and politicians who seek to capitalize on popular songs should tread carefully. In the end, a campaign’s selection of music might hit the wrong note, legally speaking, if the artist’s rights are ignored.

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Written by Flora Wu and Nicholas James, members of CBABC’s Intellectual Property & Technology Law Section Executive.

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1. Donald Trump news: Artists object to campaign's use of songs | CTV News | ↩
2. Copyright Act, R.S.C. 1985, c. C-42, ss. 29, 29.1 and 29.2. | ↩
3. Théberge v. Galerie d’Art du Petit Champlain inc., [2002] S.C.J. No. 32, [2002] 2 S.C.R. 336 at para. 15 (S.C.C.). | ↩
4. Copyright Act, R.S.C. 1985, c. C-42, ss. 29, 29.1 and 29.2; see also Eugene C. Lim, “On the Uneasy Interface between Economic Rights, Moral Rights and Users’ Rights in Copyright Law: Can Canada Learn from the UK Experience?” (2018) 15:1 SCRIPTed 70 https://script-ed.org/?p=3545, part 2, para. 2. | ↩
5. Copyright Act, R.S.C. 1985, c. C-42, ss. 29, 29.1 and 29.2; see also Eugene C. Lim, “On the Uneasy Interface between Economic Rights, Moral Rights and Users’ Rights in Copyright Law: Can Canada Learn from the UK Experience?” (2018) 15:1 SCRIPTed 70 https://script-ed.org/?p=3545, part 2, para. 2, part 2, para. 2. | ↩
6. Eugene C. Lim, “On the Uneasy Interface between Economic Rights, Moral Rights and Users’ Rights in Copyright Law: Can Canada Learn from the UK Experience?” (2018) 15:1 SCRIPTed 70 https://script-ed.org/?p=3545, part 2, para. 2, part 2, para. 2. | ↩