Tuesday 2 June 2009

It is Golfers and Racing Drivers Who Can Save Music Creators' Damaged Reputations

Neither copyright nor moral rights can be used by songwriters and performers here in the UK to try and rescue their reputations from the damage they are suffering by their work being sold to raise funds for the British National Party. See the Featured Artists Coalition and Musicians' Union recent letter to The Times.

The BNP's website (which this writer will not dignify with a weblink) offers CDs as part of their merchandise range, and artists and songwriters featured on these CDs are furious at seeing their work being used to promote and fund a thinly-disguised racist and xenophobic political agenda - "a disgusting liberty" in the words of one major star.

But these CDs were, in the main, licensed recordings puchased for resale by the BNP. That said, can it be true that the MCPS in the UK license the BNP's own label Great White Records? One release, by Traven Tucker and billed as "pure southern Americana" (so that would be gun-toting redneck narrowmindedness would it?) contains a cover version of the Les Reed- and Barry Mason- penned classic Delilah!

Songwriters and artists cannot rely on their moral rights (waived by contract) to protect them from such use - and nor can they expect their publishers and record companies to guard their reputations by asking that all end users of their work are acceptable or should that be "whiter than white"? Clearly an impossibility.

The site offers The Best of British Folk Music which apparently "represents the heart and soul of the common people of our land". Two Fairport Convention recordings (Madeleine and The Eynsham Poacher) are included, purportedly in support of this disingenuous puff. Scotland the Brave, a collection of bagpipe music features The Mull of Kintyre - about which, I am sure, Sir Paul McCartney will be deeply underwhelmed. And the recording of the White Cliffs of Dover is most unlikely to win the support of Dame Vera Lynn.

The widow of one songwriter included in the "Nostalgia" collection was appalled to discover that an Ivy Benson recording of her late husband's work The Homecoming Waltz , was being offered for sale. The thrice decorated journalist, songwriter and UK founder of BMI, the late Robert. S. Musel, flew over the Battle of the Bulge (yes, really) and was loved and respected by the music industry for his generosity of spirit and open-mindedness. But one can't libel the dead - which will, doubtless, infuriate the estates of Sir William Walton and Ralph Vaughan Williams whose works also feature.

Because libel it may well be. Help could be at hand for those maligned from the likes of Formula 1 driver Eddie Irvine and a Mr Tolley, a well-known amateur golfer in the 1930s.

Mr Tolley's image was used by Fry's chocolate in an advertisement and Tolley claimed the implication was that he had received payment for the endorsement, which would damage his status as an amateur golfer. The trial judge agreed that this use by the defendant constituted an innuendo which was capable of being defamatory and the House of Lord concurred (see Tolley v Fry [1931] A.C. 333).

In Irvine v Talksport [2002 FSR 943], [2003] EMLR 131, Formula One driver Eddie Irvine objected to the use of his manipulated image to advertise a radio station which Irvine contended was a false endorsement. He succeeded in proving (1) that he had substantial goodwill and (2) the action by Talk Radio gave rise to the message that Irvine endorsed, recommended or approved of the station.

The writers and artists whose work is being used to promote and fund the British National Party rightly do not approve of this use of their work. And this "right minded person" can make the link between their work being used for funding and thus their support of the BNP's repugnant policies. What about the general public? The Featured Artists Coalition and the MU have a fight on their hands.

1 comment:

Harcourt said...

Les Reed reports that his and Barry Mason's track Delilah is not actually featured - huge sighs of relief all round.