Intellectual Property

Pharrell Raises Copyright Claim Against Trump’s Use of 'Happy' At Campaign Rally After Pittsburgh Synagogue Shooting

Pharrell has a strong claim for copyright infringement for the unlicensed (and highly inappropriate in light of the context) use of his work.

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It’s not uncommon for election campaigns to run into copyright issues because of the use of copyrighted material in TV or radio ads, political commentary, or at campaign events. John McCain, Barack Obama, Mitt Romney, Donald Trump, and other candidates, for example, have all been hit with copyright claims or threats. Perhaps even longer is the list of musicians and bands who have objected to the use of their songs in presidential campaigns: John Cougar Mellencamp, Tom Petty, Aerosmith, Neil Young, Sting, Bon Jovi, the Foo Fighters, and Adele, to name just a few well-known artists.

At Trump’s rally in Indiana last weekend — which he held despite the fact that hours earlier a mass shooting occurred in a place of worship, killing 11 people, arguing (incorrectly, of course) that the New York Stock Exchange opened the day after 9/11 — one of the songs played was Pharrell’s Grammy-award winning, “Happy.” Putting aside the issue of the appropriateness of even holding a political campaign rally after a national tragedy, the use of the song “Happy” seems like a particularly bad idea. Pharrell noted how disgraceful this use was, responding with a cease-and-desist letter that reads, in part:

There was nothing “happy” about the tragedy inflicted on our country on Saturday and no permission was granted for your use of this song for this purpose. 

Pharrell Williams is the owner of the copyright in “Happy,” with the exclusive right to exploit same. Pharrell has not, and will not, grant you permission to publicly perform or otherwise broadcast or disseminate any of his music. The use of “Happy” without permission constitutes copyright infringement in violation of 17 U.S.C. 501.

Pharrell is understandably upset about the use of his song in Trump’s rally, but does he have a valid copyright claim? The answer is almost certainly yes. The uses of sound recordings at campaign events, like other public events, typically require a public performance license. Often times, artists are unhappy that their music is used in connection with political campaign events, particularly when they disagree with the politician using the songs. But in many of these cases, the artists don’t have a valid copyright claim because the venue used for the event (a hotel, an arena, a stadium, etc.) has a “blanket license” from a performance-rights organization (PRO) to play recordings from its entire catalog. While artists might still complain and make clear that they did not personally authorize the use of their song in a particular context, or that such use should not be taken as an endorsement of a candidate, in terms of copyright infringement, they’re probably out of luck.

Pharrell’s case is different, though, because he hasn’t licensed his music to ASCAP or BMI, the major two PROs that often handle these blanket licenses. Instead, Pharrell’s music is licensed through the smaller PRO known as Global Music Rights. Eriq Gardner of The Hollywood Reporter, Esq, noted in a series of tweets on Tuesday: first that there is a “Better than usual possib[ility] this use wasn’t licensed” and then quickly afterward, “Yup, I’m right. GMR didn’t license performance rights to the venue or campaign.” Whether or not this particular use ends up in litigation, Pharrell does have a strong claim for copyright infringement for the unlicensed (and highly inappropriate in light of the context) use of his work.

It’s highly unlikely that a defense raising fair use or the First Amendment would apply here. Readers of this column will know that I’m a big proponent of fair use because it occupies a critical space in our copyright law, balancing the rights of copyright owners with the rights of users. Here, though, the use of “Happy” was almost certainly for the same purpose as the original: to entertain. There is no evidence supporting a transformative use and the four statutory factors would all seem to weigh heavily against fair use. While political speech is certainly critical in the First Amendment context, the fair use doctrine actually takes freedom of speech into account. SCOTUS in Eldred v. Ashcroft called the doctrine “built-in First Amendment accommodations.”

Thus, Pharrell’s copyright claim in this case is pretty strong. However, I would be remiss if I didn’t note that copyright has been misused in the campaign context to silence criticism/negative ads for political gain. This issue has come up most commonly in the context of Digital Millennium Copyright Act (DMCA) takedowns. For example, John McCain’s 2008 presidential campaign was hit with a multitude of takedown notices for political ads that used short TV network clips to criticize statements by Obama or highlight mistakes. One ad included a seven-second clip of Katie Couric commenting on sexism in campaigns (particularly sexism against Hillary Clinton), designed to suggest that Obama’s campaign statements with respect to McCain’s running mate, Sarah Palin, was another example of sexism. This type of commentary, based on very short excerpt, is a great example of fair use. Nonetheless, it was the subject of a takedown notice when CBS argued that the clip of Couric infringed the network’s copyright.

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Copyright infringement claims in campaigns do have their place — Pharrell’s objection is a good example of a legitimate copyright claim. But, as John McCain — and many other politicians — has found, DMCA takedown notices can be used inappropriately to chill campaign speech.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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