Cory Bernardi’s #AC100: infuriating for ‘nominated’ musicians, but unlawful?

By Natalie Hickey, January 21, 2018

Many of us consider ourselves Aussie rock stars, on the inside anyway. Even if our work was not co-opted by Cory Bernardi for his #AC100 list, it might have been (if we’d like, written an iconic Oz rock song capable of appearing on the list).

Our lack of desire for our iconic songs to be associated with a political cause means we join a long line of singers and song writers worldwide who have been thrust into this invidious position. For instance, Eminem secured damages of NZ $600,000 when a conservative New Zealand political party substantially  reproduced Lose Yourself. Bruce Springsteen has been required to restrain numerous Republican candidates, starting with Ronald Reagan, time and again, from using Born in the USA (the ironic nature of the title in the context of the lyrics being apparently lost on them). Queen was also extremely unhappy when Donald Trump played We are the Champions at his campaign launch.

It’s one thing to be members of a rarified club. But what are our legal options when politicians try to appropriate some of our cachet without our permission? We will explore some of these options in this post, noting that Australian law is quite different from US law in this respect. Strap yourselves in, because there are a number of permutations.

Background

Cory Bernardi is a conservative Senator in the Australian Parliament who provides subscribers to his website with a weekly dose of “common sense”. That “common sense” unapologetically spruiks “families”, “economic freedom” and “traditional values which have been the cornerstone of our society”.

On 17 January 2018, Mr Bernardi’s weekly dose of ‘common sense’ was a post entitled “Rocking Australia Day”. This was primarily a blast at the Greens who were demonstrating, according to Mr Bernardi, their “loathing for our country” by wanting to change Australia Day due to its perceived connection with colonization (seen to be insensitive to indigenous Australians). The force of Mr Bernardi’s wrath was then directed to radio station Triple J’s decision to move its Hot 100 list to a more culturally appropriate day. He described this decision as “complete BS and needs to be called out as such”.

The post continued:

“So if you like Australian music and want to celebrate Australia Day with some great home-grown tracks, the team at Australian Conservatives have put together the AC100 playlist on Spotify. It’s a collection of some of our favourite Aussie music to help you celebrate Australia Day.
You can even cast a vote for your favourite track and be in the running for a prize. It’s a small way we can all show our appreciation for the wonderful country that we are privileged to call home. Click here to listen to our iconic collection of Australian music.”

The list was also advertised on Twitter:

https://twitter.com/auconservatives/status/953477157828706305

Cory Bernardi’s values might be common sense to him, but not necessarily to Aussie rockers referred to on the AC100 playlist, who expressed their views forcefully on Twitter and elsewhere.

https://twitter.com/darrenhayes/status/953593077716860928

Relevantly, Mr Bernardi did not list the bands and names on his own website, or on that of the Australian Conservatives. Rather, he referred to the existence of the #AC100 list, encouraged people to donate to his party via a closely proximate ‘donate’ box, and then asked people to click on a link. The link takes you through to the platform of streaming service Spotify.  It is on Spotify that one can find the #AC100. The Spotify list was said to be ‘By Australian Conservatives’.

Spotify, when alerted to the controversy, threatened to take down the list on the basis, amongst other things, that it risked breaching its terms and conditions by suggesting endorsement or association with brands when no such endorsement or association exists.

https://twitter.com/auconservatives/status/954203785848434694

The list at the date of writing remains on Spotify, but the words ‘By Australian Conservatives’ have been removed. It’s appearance is now simply that of a generic public list, and there is nothing to suggest, on Spotify at least, any connection with Cory Bernardi or Australian Conservatives or any other organization at all.

legal analysis

I’m going to approach this as I would any quick and dirty legal advice for a client. You want the punch line, namely, can I sue and what should I do? You don’t want an academic dissertation. So here goes.

In my view, Spotify carries the primary legal risk as the Internet host, not Cory Bernardi or Australian Conservatives. Spotify’s swift action to amend the #AC100 Spotify list can be seen as a sign of solidarity with the affected musicians but, to be frank, was more likely based on its own internal risk assessment.

Copyright is unlikely to be the issue. Spotify could likely rely on blanket licenses provided by artists who agree to have their works communicated to the public on the platform, in exchange for a fee. Spotify has recently been in hot water over this issue, settling a $200M class action last year in relation to alleged unpaid royalties. Presumably, it has learnt from this experience, and has all copyright issues covered off. In other words, if the track is available on Spotify, assume on its face that it has the right to play the track.

In my view, the more likely concern is that Australian artists could contend that Spotify has engaged in conduct likely to mislead or deceive pursuant to section 18 of the Australian Consumer Law by representing on its platform that the listed artists have an association with the Australian Conservatives, or have endorsed their inclusion on the list, when no such affiliation exists. Spotify is a commercial enterprise: the statutory requirement that the conduct must be in trade or commerce would be satisfied. The internet platform also ‘points to Australia’ (as well as other jurisdictions) which could enable artists to rely on Australian statutory law.

The devil though, is in the detail. Would the ordinary reasonable reader of the Spotify list assume some level of endorsement by artists appearing on the list? The point is arguable, but I tend to think that Spotify users, at least, would well appreciate that lists are created all the time by users. Indeed, that is a core part of how Spotify works. No one compiles a list with the expectation that the artist has any input into say, ‘Natalie’s birthday party list’ or the like. A judge might take a different view, but properly informed, I think this is unlikely.

Still, by removing the words capable of creating such an association, namely, the reference to Australian Conservatives, Spotify has eliminated its legal risk, in my view. It has also dealt with a core concern of artists appearing on the list, namely, their apparent affiliation with a political party they want nothing to do with.

How about Cory Bernardi and his political party? Is a lawsuit against Mr Bernardi viable? Once again, in my view it is possible, but not really viable.

The position is quite different from a political party playing music without permission at, say, a rally. There, the party may breach copyright because it has not secured the appropriate permissions to play the work, or an adaptation of it. For example, in 1996, Sam Moore recorded a new version of the 1967 Classic, “I’m a soul man” for the Bob Dole campaign, in which “I’m a soul man” became “I’m a Dole man.” The reworking also included digs at opponent Bill Clinton, like, “And he [Dole] don’t have no girl friends, no!” The Dole campaign loved it and used it regularly, including at that year’s Republication convention. It turned out, however, that the rights to the song were not Moore’s to give. “Soul Man” was written by Isaac Hayes and David Porter, and some rights were also held by Rondor Music (whose owners were liberals). The inevitable legal action was threatened and Bob Dole was required to stop using the song. Rolling Stone has some other great examples here.

However, there is no suggestion that Cory Bernardi or Australian Conservatives has played any of the songs on the #AC100 list. The list itself is not even published on any of their websites, but on a third party platform. Further, when one has regard to the list (a) each of its integers (title of track / name of artist) is unlikely to attract copyright protection because it is de minimis, and (b) if anyone owns copyright in the list itself, it is likely the person who created the list (not those referred to in it), because the #AC100 is arguably an original literary work as a compilation.

It follows that I think a copyright infringement allegation is hopeless.

I see that Marque Lawyers suggests that Cory Bernardi’s conduct of suggesting an apparent affiliation between the names on the list and Australian Conservatives could infringe the moral rights of the relevant artists on the basis that their work has been subjected to derogatory treatment. I think this is an enterprising argument and should be given kudos as a result! I also like Marque Lawyers’ approach to business development.

I personally do not consider that a moral rights argument has legs. Moral rights are a species of copyright law deriving from the European legal system. Whereas common law copyright (from the UK) is derived from the desire to protect authors economically, moral rights have a personal component directed to the artistic integrity of the author. These rights sit in a separate section of the Copyright Act 1968 (Cth). Accordingly, one can see why, in a case of this kind, contemplating moral rights has a natural attraction. Using a work in a way not intended by the artist impinges on that integrity.

However, typically, moral rights infringements derive from some form of artistic interference with the actual work itself. For instance, consider parody treatment of songs, including ‘the Dole Man’ rather than ‘Soul Man’ example referred to above. There, the lyrics were adapted but the tune was the same, calling to mind the original song but interfering with its intent. Yet, all one can say in the present case is that Cory Bernardi has referred to the existence of a list and then invited people to click through to it and nominate their favourite three Aussie artists. Even if one accepts he is the author of the list, the list only refers to the original work; there is no reproduction or adaptation of any part of the work itself (e.g. Lyrics).

Once again, section 18 of the Australian Consumer Law may hold the greatest hope for a disgruntled artist, but in my view any reliance on it would be parlous at best. First, is the conduct of a political party ‘in trade or commerce’? Here, the ‘donate button’ might offer a method of overcoming this hurdle. Secondly, upon a precise and close examination of the relevant conduct (that is, what is represented on each website or platform), is there a sufficiently close nexus between the purpose of the #AC100 and each of the named artists to give rise to a representation of affiliation or endorsement? Having regard to the above discussion concerning Spotify, I think the prospect of establishing this is low. I also do not think that the words on the relevant websites spruiking the #AC100 suggest at all that the relevant artists have agreed to participate.

Therefore, the prospect of an actionable claim may only lie with the words ‘By Australian Conservatives’ that appeared on the Spotify list. The proximity of these words to album artwork of bands such as Cold Chisel could be capable of suggesting that these bands endorsed the organization articulating them. However, now that Spotify has removed these words, I do not consider that there is a basis for any further argument.

It should be noted that in the United States there are ‘personality rights’ giving artists scope for much broader protection against use of their name in the context of promotional conduct by third parties. For a review of relevant court decisions, see sites such as rightofpublicity.com.

A  favourite example of mine relates to Michael Jordan, who secured a very substantial damages award after a supermarket chain congratulated him by way of a half page ad in Sports Illustrated for his entry into the 2009 Hall of Fame. The supermarket chain persuaded a trial judge that it was simply exercising its first amendment rights to free speech. However, on appeal, the Court held that the use of the brand name and logo in proximity to Michael Jordan’s name was intended to leverage off the positive associations of his fame in connection with their brand. It was therefore commercial speech, not protected, and Jordan won. These sui generis rights are not available to celebrities in Australia.

winners and losers

Cory Bernardi can count himself a winner. His website says that his musings are intended, in part, to infuriate, and he has certainly succeeded in his objective here. In a slow news period leading up to Australia Day, Mr Bernardi has managed to garner considerable press interest in himself and his conservative values. He has sourced endless content for his Twitter feed and, in true Donald Trump style, has sought to portray musicians speaking out against him as small ‘l’ liberals, out of touch with the concerns of his constituents. One might almost think he had planned the whole thing quite carefully…

That said, the musicians compelled to speak out have also been winners. Spotify removed offending words from the #AC100 list without a lawsuit. Spotify also conveyed publicly its disapproval that its platform was being used opportunistically and in breach of its terms and conditions.

It follows that there might well be no losers to this story.