Public Enemy split raises intellectual property issues
Rap group Public Enemy, famous for songs with heavy political messages such as Fight the Power, split with founding member Flavor Flav in early March 2020 following a dispute between band members regarding a performance at a 1 March 2020 Bernie Sanders rally in Los Angeles. The dispute touches on some interesting legal aspects of music licensing and endorsement deals.
Following advertisements that Public Enemy was playing at the rally, Flavor Flav’s legal team sent a letter to Bernie Sanders alleging that this falsely misrepresented that Flavor Flav had endorsed Bernie Sanders’ campaign for the 2020 Democratic Party presidential nominee, which was not the case. Flavor Flav accused Sanders of “unauthorized use of his likeness, image, and trademarked clock in promotional materials circulated by the campaign”. The full text of the letter is available here.
The letter led to a heated exchange between Flavor Flav and other founding band member Chuck D on Twitter, and, ultimately, an announcement that Public Enemy was “moving forward” without Flavor Flav.
This dispute touches on some interesting intellectual property issues:
1. Right of publicity
American law includes a general right of publicity which prevents unauthorised use of an individual’s name, likeness, or voice for commercial promotion. The letter from Flavor Flav’s legal team accuses the Sanders team of infringing these rights. Australian law, by comparison, does not include such a right. Therefore, in Australia, the aggrieved party would likely have to rely on a more general cause of action under the Australian Consumer Law for misleading or deceptive conduct. They would need to show that advertising an ‘endorsement’ from a band or other group falsely indicates that all individual members of the band stand behind the endorsement.
2. Copyright law
A relevant issue under copyright law is whether individual band members have the right to license or perform music without the consent of other band members. This may be formally dealt with by an agreement between the band members. Failing this, assuming that the relevant copyright ‘work’ (which could be the lyrics, sheet music, or a recorded performance) was created by all band members, these band members will likely be joint copyright owners. Under Australian copyright law, joint owners of copyright are not entitled to exercise their copyright, or license others to exercise it, without the consent of the other co-owners (subject to any agreement to the contrary). Therefore, under Australian law, the default position is that one band member requires the consent of other band members in order to license or perform a song that they created jointly.
3. Trade Marks
If an endorsement or performance involves the use of trade marks (such as the name of a band), then this may also raise questions of trade mark ownership and licensing. Public Enemy’s trade marks in America (including its name) are registered to Chuck D, however Flavor Flav also has certain marks, including his own name and logos incorporating his iconic watch, registered in his own name. Under Australian law, if any endorsement deal or advertising involves trade mark use, and the relevant trade mark owner has not consented to this use, there is a risk that this may constitute trade mark infringement, despite any permission purportedly granted by other persons or groups.
Following the dispute, Public Enemy rebranded to Public Enemy Radio and performed at the Sanders rally under this name without Flavor Flav. Given the Public Enemy trade marks are owned by Chuck D, it is not clear (at least from an Australian legal perspective) that the band needed to rebrand following the departure of Flavor Flav, but perhaps everyone involved considered it best to differentiate the new lineup of the band. Whether the band can continue playing songs written by Flavor Flav is another matter, which will likely require legal attention, and may be expressly contemplated by a written or oral agreement.
The Public Enemy split is the latest in a long line of disputes regarding the use of songs in political campaigns. Various artists including Pharrell Williams, REM, Neil Young, Adele, Aerosmith and The Rolling Stones have taken issue with Donald Trump’s use of their music. ABBA requested that John McCain stop broadcasting ‘Take a Chance on Me’ during political rallies. In 2015, Dropkick Murphys were more direct in asking former Wisconsin governor Scott Walker to stop using their music, stating on Twitter that it was because “we literally hate you”.
Closer to home, Eminem successfully sued the New Zealand National Party when he refused to license Lose Yourself for use in an advertisement, only to have the party instead use a track deliberately designed to sound similar. In Australia, Clive Palmer is currently defending litigation brought against him by Universal Music for the unauthorised use of a reworked version of a Twisted Sister song in his political ads. The case is scheduled to be heard in October 2020.
The Public Enemy dispute, and the many other similar cases, show the need for band members to reach clear agreement about issues including:
- What happens to intellectual property rights if the band splits up
- Do endorsement deals (whether paid or otherwise) require the consent of all band members? What happens if there is a conflict about endorsing a particular person or brand?
- Who will own the trade marks of the band, and what consent (if any) is required from other band members to license or use these marks?
In the absence of a written agreement dealing with these issues, it is important that band members have an understanding of the default position under law, as it may not be clear-cut.