Artists and politicians have always had a fractious relationship.
Sometimes it’s a love-in based on shared ideologies (see: Barack Obama and Bruce Springsteen) and sometimes it’s a one-sided attempt at association (see: Donald Trump and Bruce Springsteen).
Cory Bernardi’s creation of a playlist of Australian music yesterday was an example of the latter, with Powderfinger, Hilltop Hoods, Men At Work’s Colin Hays and others publicly asking for their music to be removed.
But what can an artist do if they don’t want a politician to use their work? Let’s take a look.
Can they take legal action?
There is a part of the Copyright Act that deals with what’s called a moral right, which is supposed to protect an artist’s work from “derogatory treatment”.
“It’s the doing of something that results in distortion, mutilation or alternation of a work that’s somehow prejudicial to the creator’s honour or reputation,” said Kimberlee Weatherall, a professor of law at the University of Sydney.
“They are meant to protect that connection that exists between a creator and the work they have created … That really personal, ‘I put my heart and soul into this, it represents in some way a part of me, and I have a right to protect that from incursion’.”
The definition of derogatory is quite broad, experts say.
“Looking at the law, this could be the kind of thing that could be prejudicial to an author’s honour or reputation,” Professor Weatherall said.
Is legal action against Bernardi likely?
Iva Davies, the lead singer of Icehouse, talked about the possibility on ABC Radio Melbourne yesterday. His song Great Southern Land was on the list.
“I went to a great deal of trouble to construct this song to be well above any kind of politics,” he said.
“So to have it associated with any politics at all is, as far as I’m concerned, compromising the integrity of the song.”
He added: “We’ve requested that he takes it down and I’m still waiting for the publishers and the record company to get back to me on how they’ve gone with that.”
Court action would be expensive, and any kind of reputational damage — which you’d need to show to win any money — would be hard to prove, given the artists themselves have publicly said they don’t agree with Mr Bernardi and his politics.
Isn’t Spotify a public thing?
Yes — but it appears there are limits to what you can do there.
Yesterday, Spotify released a statement condemning the playlist.
“We want to make clear we do not endorse this playlist, nor do we have any official ties to the Australian Conservatives party nor any other political party.”
After that, Senator Bernardi said his playlist had been removed from the service because it contained “offensive content”.
The ABC has contacted Spotify for comment.
Has this sort of thing happened before?
The moral right of integrity has only been a thing under Australian law since 2000. (It was introduced by the Coalition when Senator Bernardi was a senior figure in that party.)
Since then, there have been accusations, but the law hasn’t really been tested in court in relation to the use of a piece of music.
In 1997, the techno act FCB released a track called Excalibur containing a sample of a 1936 piece of classical music called Carmina Burana.
The owners of that piece claimed the techno remix, 60 years hence, had “debased” their copyrighted work by “altering its quality and integrity”.
“There was a very interesting discussion in that case about whether political associations, with say a terrorist organisation or a racist party, might constitute debasement,” Matthew Rimmer, a professor of intellectual property and innovation at QUT’s law school, said.
What about overseas?
Well, aside from conservative politicians embracing (and seemingly misunderstanding) Springsteen’s anti-war epic Born In The USA, there is one interesting one.
Last year, the illustrator behind Pepe The Frog, the sad-faced cartoon amphibian that came to be associated with the alt-right, issued takedown notices against white nationalists.
He also went after Reddit and Amazon, asking for the image to be removed. He had previously lamented the fact his caricature had become “a hate symbol”.
Also last year, Eminem won a high-profile case against the New Zealand National Party after it ripped off his song Lose Yourself for one of its campaign ads.
In that instance, though, the party had actually commissioned its own version of the song.