Saturday, August 15, 2020

Old Man, Take a Look at My Rights: Can Creators Stop Trump From Using Their Songs in an Online World?

BB_Neil-Young-Trump-market-bb12-2020-billboard-1548-1597258090
Anton Emdin

Creators often object to the use of their songs at campaign events. But songwriters' disdain for Trump — and the online nature of this campaign — could lead to a new level of legal wrangling.

It's as much a part of presidential campaigns as reporters interviewing voters in swing-state diners: Candidate, usually Republican, plays song at rally; creator objects; creator's lawyer sends cease-and-desist letter. Traditionally, that's where the issue ends. Most candidates are reluctant to alienate songwriters, even though the public performance licenses they have — from ASCAP or BMI, for example — usually allow them to play their compositions.
Nothing about this presidential campaign is normal, though. The disdain of many creators for President Donald Trump, combined with the fact that the coronavirus pandemic is pushing most political events online, could lead to an amount and intensity of legal wrangling over music never before seen in a U.S. election. Already, in addition to the usual letters, The Rolling Stones in late June credibly threatened Trump's campaign with a lawsuit for playing "You Can't Always Get What You Want" at rallies, while on Aug. 4, Neil Young sued the campaign for playing "Devil's Sidewalk" and "Rockin' in the Free World" at events.
The Stones and Young are taking advantage of the campaign licenses now used by ASCAP and BMI that allow songwriters to remove public performance rights for political campaigns. (No separate license is required to play a recording at a public event unless it's transmitted online.) And the issue will almost certainly intensify as campaigns head online, where using songs and recordings with video can require an array of licenses — and creators will have more options to stop them.
"As there are more and more remote events, if people are looking to campaign over the internet, we are going to see more of this problem," says Eleanor Lackman, who handles music litigation at Mitchell Silberberg & Knupp. "If you're using music online, if you're not planning that out in advance or you're not removing it, you're living under a rock." That means people or organizations that post campaign videos on YouTube could receive takedown notices — which, in turn, can be challenged.
All of this could be complicated further by Trump's reputation for litigiousness. "Normally people would think, 'If I'm being criticized by this artist whose music I'm using, that's bad,'" says Alex Weingarten, an entertainment attorney who has worked with Tom Petty's family, which in June demanded that the Trump campaign stop playing "I Won't Back Down." "Those conventions no longer apply to this candidate."
Online music licensing isn't exactly straightforward. To stream footage of a rally with music, for example, a campaign would usually need a public performance license and a synch license, plus permission to use a recording — unless the video is available on demand. In that case, it would also need a mechanical license, which it might need anyway, depending on whom you ask. Unless it's fair use, in which case no license is necessary. But that depends on context, so a campaign ad might need to license music, while news coverage of a rally probably wouldn't. Got that?
Right now, each of the 11 rallies posted on Trump's official YouTube page end the same way: with 30 seconds of the Stones' recording of "You Can't Always Get What You Want." Theoretically, using these clips should require synch licenses from both the song's publisher and the owner of the master recording — in this case, ABKCO Music & Records, the company founded by late Stones manager Allen Klein — which could issue a takedown notice. (Many YouTube videos use 30 seconds of music in the belief that such snippets qualify as fair use, but this isn't necessarily so.)
"It would be fairly straightforward for the Stones to get an injunction for the use of their songs as part of the audiovisual work," says attorney Larry Iser, who represented Jackson Browne when he sued presidential candidate John McCain after "Running on Empty" was used to poke fun at Barack Obama in 2008. "Open and shut."
Probably. But, says Lackman, "There is a lot of leeway in the law for fair use in the political context because of the importance of political speech." So rights holders have been wary of issuing takedown notices that involve politics for fear of setting a precedent that could hurt them in the long run. If the Trump campaign were to prevail in court, it could potentially establish that music can be used without a license, under fair use, in a variety of political videos.
Already, some creators seem to have stopped Trump from using their music online. In July, when White House social media director Dan Scavino tweeted a two-minute campaign video that included a cover of Linkin Park's "In the End," the band announced what it called "a cease-and-desist order." Trump retweeted Scavino's post — then Twitter took it down.
Creators can also sue when their music is used without permission in a way that implies an endorsement, although that would presumably only apply if a campaign uses the same music regularly as a sort of theme song. That could potentially apply to Trump's repeated use of "You Can't Always Get What You Want" and "Rockin' in the Free World," although neither the Stones nor Young mentioned this. (Both acts declined to comment.)
Like so much in current politics, lawsuits over the use of music in a presidential campaign could enter new legal territory. Creators generally stick to writing letters because "it costs you 10 cents to make the claim — it costs you $50,000 to sue," says music litigator Howard King, who sent a cease-and-desist letter to the Trump campaign on behalf of Pharrell Williams when his song "Happy" was played at a rally after the deadly 2018 Pittsburgh synagogue shooting. "What's unusual is you have someone who couldn't care less what the law is and is willing to litigate everything, especially knowing there's going to be no resolution before the election."

Musicians Have Been Slow to Support Biden. Is Harris Finally Bringing In the Stars?


Joe Biden Kamala Harris
AP Photo/Carolyn Kaster
Democratic presidential candidate former Vice President Joe Biden and his running mate Sen. Kamala Harris, D-Calif., arrive to speak at a news conference at Alexis Dupont High School on Aug. 12, 2020.

By this time in 2008, Stevie Wonder was opening for Barack Obama and superstar rappers were writing songs about the man who would become the first African-American president. By this time in 2016, Katy Perry had performed at a handful of Hillary Clinton events. And while Joe Biden's newly announced running-mate, Sen. Kamala Harris, has galvanized pop stars, celebrities and their followings, the former vice president's biggest music event to date has been a June livestream with songs by John Legend and Andra DayDave Matthews and Kristen Chenoweth and a speech by Barbra Streisand. It raised $800,000 and drew 1.2 million Facebook views, but it didn't exactly scream "excitement for the nominee."
"We're finding it very easy for musicians to say, 'Fuck Trump,'" says Nick Stern of Stern Management, who is working as a liaison between the music business and the Biden campaign. "But we're finding it very hard to say 'Vote for Biden' -- and it's a very important distinction."
That could change with Harris' presence on the ticket -- Taylor SwiftPharrell WilliamsCiaraNick Jonas and P!nk made enthusiastic social media posts, as did Legend, Sheryl Crow and Sara Bareilles, who had already pledged their support to Biden. And this morning, the Democratic National Convention announced a roster full of star power for next week: Billie EilishLeon Bridgesthe ChicksCommon and others. "I do think people will get on board," country singer Chely Wright says. "These young influencers are going to ultimately push their very powerful and important voices behind the Biden-Harris ticket."
Still, unlike Obama, Clinton or his former rival, Sen. Bernie Sanders, Biden has so far done little to mobilize top-tier music stars for his cause. CherJames TaylorCarole KingJoe WalshJimmy Buffett and others have made their way to the campaign, but the younger A-listers who supported Sanders -- from Cardi B to Ariana Grande -- have been noticeably silent since Biden became the presumptive Democratic nominee in early June.
"It's less 'vote for this person.'" Jordan Kurland, who manages Death Cab for Cutie and advises the Biden campaign, adds: "Honestly, it hasn't been all that easy to get artists to be outwardly supportive of Biden. A lot of people in our business are very pro-Bernie, or pro-Elizabeth Warren, and having another centrist white guy is not all that inspiring."
This is concerning to Biden supporters. "He is the choice and we need to fall in line. Period," says Billy Porter, the singer, actor and progressive activist. "In this moment, in this time in the world, your opinion of him doesn't matter. Get over yourselves." Adds singer-songwriter Rufus Wainwright: "If they're true Sanders supporters, they will do as he said and vote early and vote for Biden. It's plainly evident what we have to do, i.e., save the planet."
Stern, who had a similar volunteer role in 2016, says the Clinton campaign could have done more with artists, like deploying smaller stars with regional followings to speak to their fanbases. He fears that Biden's surrogates are repeating these oversights this year. "We're trying to get the [Biden] campaign to focus on us more than they did in 2016," he says. "Artists are influencers who can make a difference, especially the ones from swing states."
The Biden campaign has put on star-studded online events, such as a late-May "Rock Out on a Night In" livestream starring Buffett, Sheryl CrowDavid Crosby, Wainwright and Walsh, who told Billboard, "We've got to rebuild democracy. I'm proud to endorse Joe Biden and will do whatever it takes to get him there. You should too." Michelle Kwan, the Olympic figure-skating champion who is Biden's surrogate director, promises more A-list events. "We're a very inclusive campaign and we are talking to every single person," she says. "Local bands and indie and folk and rock and rappers -- we're covering them all, the broadest coalition you can imagine."
Some in the music business, though, say the campaign hasn't followed up on all of its efforts -- former Bon Iver manager Kyle Frenette, who runs a get-out-the-vote group called Pledge 46, participated on a call earlier this summer with a Biden campaign rep and 20 to 25 artist managers, and "people were motivated," but after a few follow-ups over time, participants mostly lost interest. "There's been a few emails and attempts to rally folks," he says. "I haven't heard anything since."
Another roadblock for musicians is the pandemic -- there has been no opportunity this year to set up get-out-the-vote tables at festivals like Lollapalooza or Coachella, and the swing-state Bruce Springsteen or Beyonce rallies of recent election years are almost certainly impossible. Like everybody else in the music business, activists have had to pivot to the internet. Frenette's original plan was to put on 46 concerts to help elect the 46th president; he tried to shift them to livestreams, but "we weren't getting a very active response," so his group rebranded as Pledge 46, a Patreon-like platform that offers prizes for volunteering and voting, such as a virtual Jason Isbell guitar lesson. As of late July, the group had raised $12,000, nearly 5,000 pledges to vote and 400 volunteer sign-ups. "It's working, for sure," Frenette says. "It wasn't comfortable at first, but it feels comfortable now."
With so many people sitting at home during the pandemic, streaming audio and video, online events could be more efficient than live productions in reaching large numbers of voters. "It gives you the ability to really tap into an artist's world, including their fans," says Jonathan Azu, who manages Emily KingMichelle Williams and others and is communicating with the Biden campaign. "It'd be amazing if you went to a campaign event and see the person speak, but there's something to be said about these Instagram Lives and Zooms, where you really get to know the candidate."
Even before Harris joined the ticket, some in the music business saw signs of an upswing for artists supporting Biden's campaign. George Floyd's murder and the subsequent Black Lives Matter protests were a turning point, says Binta Brown, an artist manager who has worked with Chance the Rapper and Peter CottonTale. "People weren't as comfortable speaking out and facing major backlash," says Brown, also co-chair of the newly founded Black Action Music Coalition. "The breadth of the movement and the protesting has awakened artists and influencers about the need to be politically active. There are more artists coming to management saying, 'What can we do?'"
It's too early to say whether Harris' star power will reinvigorate music stars' support for the ticket, although P!nk's Twitter account may be a clue: She has ripped Trump numerous times in recent months, while never overtly mentioning Biden. But after Biden announced Harris on the ticket, P!nk tweeted, "You both have my vote."
"The announcement of 'OK, this is the ticket' has moved everybody into that fighting stance. I saw a lot of posts like, 'Here we go, now we're talking, let's get cracking,'" says R&B star Lalah Hathaway. "People are just getting ready. They're gearing up to go."

AUSTRALIAN ARYANISM

The Australian’s racist Kamala Harris cartoon shows why diversity in newsrooms matters

August 14, 2020 2.48am EDT

A Johannes Leak cartoon published in The Australian today, in which US Democratic presidential candidate Joe Biden is depicted calling his vice-presidential running mate Kamala Harris a “little brown girl”, has drawn widespread condemnation.

Several Australian politicians, including former Prime Minister Kevin Rudd, have described the cartoon as racist, as have a suite of journalists and media observers (ex-Labor leader Mark Latham said he loved it).

I am firmly in the camp that thinks this is a racist and sexist cartoon. As a journalism lecturer with an ongoing interest in the diversity of Australian media, I think today’s outrage shows there is still much work ahead in making newsrooms less overwhelmingly white.
Context matters

My own view is this cartoon should never have been published, and it has no place in Australian media. I’m glad to see Australian politicians and public figures coming forward and saying it’s unacceptable.


The Australian’s editor-in-chief, Chris Dore, told Guardian Australia that Leak’s cartoon “was quoting Biden’s words” from a tweet the US politician issued this week about young girls drawing inspiration from Harris.


“When Johannes used those words, expressed in a tweet by Biden yesterday, he was highlighting Biden’s language and apparent attitudes, not his own,” Dore told Guardian Australia. “The intention of the commentary in the cartoon was to ridicule racism, not perpetuate it.”

I think Dore’s explanation is unconvincing. Biden’s tweet is clearly referring to girls who look up to Harris. It’s a massive sidestep to say Biden is talking down to his recent vice-presidential pick. The contexts are totally different.


I cannot imagine The Australian published today’s cartoon without knowing it would provoke outrage - and that this outrage would delight parts of their audience. Part of the delight is in the outrage it provokes.

Read more: Australia's media has been too white for too long. This is how to bring more diversity to newsrooms
Australia looks backward

It’s hardly the first time, either, that a racist cartoon published in our mainstream media makes us look backward and out of step as a country.

Think back to the embarrassing episode of blackface on Hey Hey It’s Saturday in 2009, or Johannes Leak’s father Bill’s cartoons in the past, and the Herald Sun’s widely condemned Mark Knight cartoon depiction of Serena Williams in 2018. (It should be noted, the Press Council ruled the latter “non-racist” and Knight defended it - unconvincingly - by saying he had “absolutely no knowledge” of the Jim Crow-era cartoons of African-Americans.)

These examples show the work of making sure Australian newsrooms are diverse is ongoing.

There’s still so much room for improvement when it comes to editorial decisions, reporting and making sure we have a range of stories told about who we are as a country. That hasn’t been done well so far in Australia and cannot be done well while the media is largely dominated by white men.

As I wrote in an earlier Conversation article, despite a quarter of Australians being born overseas and nearly half having at least one parent who was born overseas, our media organisations remain blindingly white.

A 2016 PriceWaterhouseCoopers report found 82.7% of Australia’s media workers speak just one language, and speak only English at home. There’s a high prevalence of media workers in the inner Sydney suburbs, it found, concluding that a lack of diversity – in ethnicity, gender and age – is holding back industry growth.

Unless these trends are addressed, we will continue to see work like Leak’s cartoon making it through the gate.

Read more: The Herald Sun's Serena Williams cartoon draws on a long and damaging history of racist caricature
A long history

There’s a long history of racist cartoons in Australian media. What’s different is the response. Today’s cartoon has blown up on Twitter — and yes, I realise it is a place closely watched by Australian politicians and media people but largely ignored by most Australians — but at least the online outcry allows some kind of accountability.

In the past, the media could publish racist cartoons without being called to account. These days, the pushback is manifesting in real time.

Should we all have just shaken our heads and ignored it? I don’t think so. Once something like that is published, the horse has bolted and you have to respond. I think collectively ignoring a racist cartoon won’t remove its prominence or significance.

We are forced to revisit this debate every time a racist cartoon or article is published, or a racist comment put to air. I hope that by revisiting it forcefully enough and by making these points enough times, the conversation moves forward and we can make some progress. I also hope racist cartoons are never published in Australia’s mainstream media again. But I won’t be holding my breath.

Read more: Racist reporting still rife in Australian media



Author
Janak Rogers

Associate Lecturer, Broadcast Journalism, RMIT University



RMIT University provides funding as a strategic partner of The Conversation AU.
Will white people’s participation in Black Lives Matter protests yield real change?

 
After the civil rights era, white Americans failed to support systemic change to end racism. Will they now?

Jeremy Hogan/SOPA Images/LightRocket via Getty Images
August 13, 2020 8.10am EDT

The first wave of the Black Lives Matter movement, which crested after the 2014 police killing of Michael Brown in Ferguson, had the support of less than half of white Americans.

Given that Americans tend to have a very narrow definition of racism, many at that time were likely confused by the juxtaposition of Black-led protests, implying that racism was persistent, alongside the presence of a Black family in the White House. Barack Obama’s presidency was seen as evidence that racism was in decline.

The current, second wave of the movement feels different, in part because the past months of protests have been multiracial. The media and scholars have noted that whites’ sensibilities have become more attuned to issues of anti-Black police violence and discrimination.

After the first wave of the movement in 2014, there was little systemic change in response to demands by Black Lives Matter activists. Does the fact that whites are participating in the current protests in greater numbers mean that the outcome of these protests will be different? Will whites go beyond participating in marches and actually support fundamental policy changes to fight anti-Black violence and discrimination?

As a scholar of political science and African American studies, I believe there are lessons from the civil rights movement 60 years ago that can help answer those questions.The Civil Rights Act of 1964 being enacted by President Lyndon Johnson. Universal History Archive/Getty
Principles didn’t turn into policy

The challenges that Black Americans face today do not precisely mimic those of the 1960s, but the history is still relevant.

During the civil rights movement of the mid-20th century, there was a concerted effort among Black freedom fighters to show white Americans the kinds of racial terrorism the average Black American lived under.

Through the power of television, whites were able to see with their own eyes how respectable, nonviolent Black youth were treated by police as they sought to push the U.S. to live up to its creed of liberty and equality for all of its citizens.

Monumental legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 passed, purportedly guaranteeing protection from racial discrimination in many public spaces and equal opportunity to register to vote and cast a ballot.

Additionally, whites were increasingly likely to report attitudes that many would now view as nonracist over the following several decades. For example, white Americans were more willing to have a nonwhite neighbor. They were less likely to support ideas of biological racism or the idea that whites should always have access to better jobs over Blacks.

But these changed values and attitudes among whites never fully translated into support for government policies that would bring racial equality to fruition for Blacks.

White Americans remained uncommitted to integrating public schools, which has been shown to drastically reduce the so-called racial achievement gap. Whites never gave more than a modicum of support for affirmative action policies aimed to level the playing field for jobs and higher education.

This phenomenon – the distance between what people say they value and what they are willing to do to live up to their ideals – is so common that social scientists have given it a name: the principle-policy gap.

White Americans’ direct witness of police brutality led to a shift in racial attitudes and the passage of significant legislation. But even these combined changes did not radically change the face of racial inequality in American society.
Going backward

By the 1970s and 1980s, political leaders would capitalize on whites’ sentiments that efforts for racial equality had gone too far.

That created an environment that allowed the retrenchment of civil rights-era gains. The Republican Party’s so-called “Southern Strategy,” which aimed to turn white Southern Democrats into Republican voters, was successful in consolidating the support of white Southerners through the use of racial dog whistles. And the War on Drugs would serve to disproportionately target and police already segregated Black communities.

By the 1990s, racial disparities in incarceration rates had skyrocketed, schools began to resegregate, and federal and state policies that created residential segregation and the existing racial wealth gap were never adequately addressed.\
Fifty years after police brutality toward young Blacks in Selma, Alabama, awakened whites to violent racism in the U.S., Selma, shown here, is a struggling city. Justin Sullivan/Getty Images
From understanding to action?

Scholars have made efforts to reveal the intricate and structural nature of racism in the U.S. Their analyses range from showing how racial disparities across various domains of American life are intricately connected rather than coincidental; to highlighting the ways in which race-neutral policies like the GI Bill helped to set the stage for today’s racial wealth gap; to explaining that America’s racial hierarchy is a caste system.

But my research shows that white Americans, including white millennials, have largely become accustomed to thinking about racism in terms of overt racial prejudice, discrimination and bigotry. They don’t see the deeper, more intractable problems that scholars – and Black activists – have laid out.

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Consequently, it has taken a filmed incident of incendiary racism to awaken whites to the problems clearly identified by Black activists, just as it did for previous generations.

My research also shows that individuals’ understanding of the problem influences their willingness to support various policies. A big issue that our society faces, then, is that white Americans’ understanding of racism is too superficial to prompt them to support policies that have the potential to lead to greater justice for Black Americans.
Attitudes and policies don’t match

Some have suggested that this second wave of the Black Lives Matter movement is the largest social movement in American history. These protests have led local representatives to publicly proclaim that Black Lives Matter; policymakers, government officials and corporations to decry and remove Confederate symbols and racist images; and congressional as well as local attempts to address police accountability.

But, as after the civil rights era, the principle-policy gap seems to be reappearing. Attitudes among whites are changing, but the policies that people are willing to support do not necessarily address the more complex issue of structural racism.

For example, polling reveals that people support both these protests and also the way that police are handling them, despite evidence of ongoing brutality.

The polling also shows that the majority of Americans believe that police are more likely to use deadly force against Black Americans than against whites. But only one-quarter of those polled are willing to support efforts to reduce funding to police – a policy aimed to redistribute funds to support community equity.

More whites are willing to acknowledge white racial privilege, but only about one in eight support reparations to Blacks.

Americans may choose to dig deeper this time around. Some state legislators, for example, are attempting to leverage this moment to create more systemic changes beyond policing – in schools, judicial systems and health matters.

But ultimately, Americans will have to overcome two intertwined challenges. First, they will have to learn to detect forms of racism that don’t lend themselves to a mobile-phone filming. And they will have to recognize that dismantling centuries of oppression takes more than acknowledgment, understanding and well-meaning sentiment. It takes sacrifice and action.



Author
Candis Watts Smith

Associate Professor of Political Science & African American Studies, Pennsylvania State University

Pennsylvania State University provides funding as a founding partner of The Conversation US.