When Copyright Meets Patriotism: Who Owns the Copyright to National Anthems?

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We are all familiar with national anthems although most of us don’t get to sing them much except when we belt them out, to various forms of accompaniment, at sports events. These pre-game rituals can sometimes be controversial, as we have seen in the US with certain athletes refusing to stand for the anthem as a form of social protest, or when a performer mangles an anthem (usually someone else’s). It seems to happen mostly at hockey games between US and Canadian clubs when the singer is unfamiliar with the words of the visiting team’s anthem. In what became known as the “Star Mangled Banner”, jazz singer Alexis Normand found—half way through the song—that she didn’t know the words to the US national anthem that she was singing to open a hockey game in Saskatoon being played between a US and a Canadian team. The Americans got their revenge a couple of years later though, when anthem singer Jill Schackner decided to insert some lines from America the Beautiful into O Canada at an NHL game in New York. Apparently the worst-ever known rendition of O Canada occurred at a football game featuring a Canadian and an American team back in 1994 in Las Vegas when the singer lost the plot, and the tune of O Canada morphed into O Tannenbaum by the final stanza. You can hear that version here.

It may not be surprising that foreign singers have difficulty with O Canada since most Canadians can’t keep up with all the wording changes. The anthem continues to undergo regular revision, the most recent change being to make it more gender neutral by getting rid of “in all thy sons’ command” for “in all of us command”. While the English version has undergone a number of minor tweaks over the years, the original French lyrics, which are redolent of 19th century religious imagery and have no connection to the English-language words, have remained untouched. The original English lyrics were written 30 years after the French version. The music was composed by Quebec composer Calixa Lavallée in 1880 but the anthem did not become official until a century later, when the National Anthem Act was passed on June 27, 1980. As part of that Act it was declared that the melody and words of O Canada would be left in the public domain, although it is possible to copyright specific arrangements of the melody. Perhaps that singer in Las Vegas could copyright his Christmas Tree version of the Canadian anthem?

In the US, almost everyone knows that Francis Scott Key penned the words to the Star Spangled Banner while watching the British bombardment of Fort McHenry during the War of 1812, but I wonder if most Americans realize that the music was written by an Englishman, John Stafford Smith in 1773, (the music to which the anthem is set is an adaptation of a pre-existing English tune) and that the Star Spangled Banner did not become the official anthem of the United States until 1931. Although Key’s and Smith’s copyrights were long exhausted by that time, as a result of that decision the work was declared to be in the public domain for all US citizens. However, as explained here, mechanical, publishing and performance rights may still apply.

Anthems can have many forms. Often they are unilingual but in some cases there are versions in more than one language, as in Canada (English and French) or New Zealand (Maori and English). In South Africa, the current anthem incorporates five languages into its unified text, Xhosa, Zulu, Sesotho, Afrikaans and English. This anthem, adopted after the end of apartheid, has become a symbol of reconciliation, blending part of the apartheid era South African anthem with an African protest hymn, Nkosi Sekelel’ iAfrika. It is a musical symbol of the new South Africa. While this new anthem dates from 1997, some anthems are much, much older although in many cases they were not officially adopted until fairly recent years. The Dutch anthem is reputed to be the world’s oldest, dating back to the 1570s although it did not officially become the national anthem until 1932.

In some countries, the wording is rousing and even violent–as in the case of the Marseillaise, a French revolutionary war song which speaks of savage invaders coming to slit the throats of sons and comrades, and the need to spill their impure blood in the fields–or they can be peaceful and happy, as in Advance Australia Fair;

Australians all let us rejoice; For we are young and free; We’ve golden soil and wealth for toil; Our home is girt by seaetc.”

In a couple of cases, a country has no official anthem, as is the case with England and Scotland, who have adopted popular songs (Flower of Scotland and Land of Hope and Glory) to represent themselves when they meet in international sporting matches. (God Save the Queen is shared by them both as the official anthem of the United Kingdom, but when England is playing Scotland in rugby, for example, each side wants something more rousing). In other instances, an anthem has to be created, as when a newly independent country is established. In some instances, there is a popular resistance or traditional song that can be adopted, as was the case in Ireland, although copyright issues dogged the adoption of the Soldiers Song as the Irish anthem and the Irish Government eventually had to purchase the copyright. In others, one has to be created out of whole cloth, as happened in the case of Vietnam in 1945 and Uganda when it achieved independence in the 1960s. In both cases, this has led to copyright disputes.

In Vietnam, when the Republic of Vietnam was proclaimed in Hanoi in the fall of 1945 after the surrender of Japan and before the return of the French, the work of composer Van Cao was played as the new anthem of the Republic. It became the anthem of the united Vietnam in 1976 after the fall of Saigon. Fast forward to 2015 when the family of Van Cao, who was by now deceased, registered the copyright for the work, and started collecting royalties. This led the government to claim that the work had been donated to the nation, a claim that Vao’s son refuted, stating there was no family consensus on the matter. Oh dear.

The case of Uganda is even messier. In Uganda, as independence approached in 1962 the government decided to hold a contest, with a cash prize, to find a national anthem. As outlined in a detailed analysis on The IP Kat (a leading international copyright blogsite), the winner of the contest was Professor George Kokoma, who was paid 2000 shillings for his composition (that is 54 US cents at today’s exchange rate—I hope it was worth more back in 1962!). It appears that some years later, Professor Kokoma figured that he had been shortchanged and sought the copyright to the anthem so that he could license it to the government. (No mention of copyright terms was made when the contest was announced.) When this failed, he instituted an action for copyright infringement, and claimed royalties for use of copyright and damages for infringement at the lower court. The lower court dismissed his claim but nonetheless awarded him 50 million shillings ($13,000) in compensation. At some point in this process, Professor Kokoma passed away but his wife, on behalf of the estate, was not satisfied with the decision and appealed. The appeal was dismissed, the court finding that the Ugandan government had held the copyright for 50 years under a “work for hire” interpretation, but that it had expired in 2012 at the end of the statutory term of protection. To make matters worse, the Appeal Court reversed the decision awarding the 50 million shilling payment!

Now the IP Kat blogger, Chijioke Okorie, questions whether this was the right decision given that vesting of copyright requires an employment contract and since the work was performed as part of a contest, no employment nexus existed. In fact, she argues that there was an implied licence in the terms of the contest allowing the government to use the work, since it was advertised as a competition to create a new national anthem. She argues that the current interpretation of the court is of concern because, using its logic, any contest organizer becomes the copyright holder for any work submitted to a contest through social media or any other format. (Of course, the contest may specify copyright terms to avoid this issue.)

Who knew what knots people would tie themselves into over the ownership of the copyright in an anthem? And with such counter-productive results. It makes the “Star Mangled Banner” and the blending of America the Beautiful with O Canada look like child’s play. And since the O Tannenbaum rendition of the O Canada lyrics modified Calixa Lavallée’s music, it can’t be the real O Canada, and therefore is not necessarily in the public domain. Maybe it’s under copyright?

© Hugh Stephens 2019. All Rights Reserved.

 

 

Remembrance Day Poppies and Intellectual Property Controversies

CBC TV Journalists–Credit: Author

At the 11th hour of the 11th day of the 11th month in 1918, the guns on the western front in Europe fell silent. An armistice was declared. Germany didn’t formally surrender although it soon collapsed and the 1919 Treaty of Versailles treated it as a defeated country (with the results twenty years later that we all know about). Thus Armistice Day, now known as Remembrance Day in many countries including Canada, the UK and Australia, and Veteran’s Day in the US, was born. And for that reason, I am posting this blog on November 11.

Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. (When I was in Sydney last November 11, I spotted just one red poppy, an admittedly unscientific although first-hand survey). It is probably fairly well known (although with today’s young people it is probably wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.

It was an American teacher, Moina Michael, who campaigned to make the poppy the international symbol for remembrance of Allied war veterans, and to use their sale for veteran’s welfare. Between 1920 and 1922 the poppy was adopted by veterans organizations in the US, Britain, Canada, Australia and New Zealand. In Britain an organization known as the “Poppy Factory”, which still exists today, was set up to manufacture the paper poppies for sale for the support of veterans causes. That leads us into the main point of this blog, the intellectual property (IP) controversies that have arisen around the sale of the poppies.

What I love about writing this copyright blog is that one can always find a new twist. I confess that I am fascinated by the nooks and crannies of copyright, such as the blog posting I wrote on “Copyright and Your Carbon Footprint”, or the blog on whether copyright is gender neutral (I argued that it was. That was like poking a hornet’s nest!), or a rather bare-bones effort on copyright and death, or last week’s posting on copyright infringement as a form of hybrid warfare. So, since Remembrance Day is upon us, I feel compelled to explore whether there is a copyright angle to the wearing of poppies. And surprise, there is.

It’s a bit tenuous, mind you, although there is definitely an intellectual property angle as to who gets to produce and sell poppies. However, it is more of a trademark than a copyright issue but, hey, why quibble? It’s all IP. There have been controversies in both Britain and Canada involving production and sale of the little red flower. In both countries (and possibly elsewhere) the poppy is trademarked, by the Royal Canadian Legion (RCL) and the Royal British Legion (RBL), respectively, both respected veterans organizations. The Royal Canadian Legion’s website notes that the trademark was conferred by Act of Parliament in 1948, and is limited to the use of the poppy in remembrance;

“The Canadian trademark for the Poppy includes both the Legion’s Poppy logo, as well as the Poppy symbol, as it relates to Remembrance. The trademark does not apply to the use of the actual Poppy flower, unless that usage is misrepresented as the Legion’s Poppy by associating it with remembrance or the raising of monies for a purpose other than the Poppy Campaign.”

However the trademark extends to any colour or configuration of the poppy when used as a symbol of remembrance. This is increasingly relevant as various groups make their own versions available, from a white poppy symbolizing peace (some would say pacifism) to a rainbow-hued LBGTQ poppy that has caused some controversy.

Whether either of the Legions would take legal action against someone for producing and selling poppies of a colour other than red is an interesting question, but last year in Britain a seller at an outdoors market pleaded guilty to selling red poppies that had no association with the RBL. In Canada a group of knitters who were knitting poppies for the price of a donation, which they say they intended to give to the RCL, were reminded that they were violating the Legion’s IP. In addition to its statement of trademark, the RCL has a very clear copyright warning on its website;

“The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Reproduction of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from The Royal Canadian Legion…”

And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans welfare programs (although the Legion is not a registered charity). Nevertheless, the Legion IP monopoly on the poppy symbol (when used in connection with remembrance) has not been without its critics. Sean Brelyea, a former air-force officer and frequent commentator on veteran’s affairs, has argued that the Legion should no longer have exclusive control of the poppy symbol since it is not the only veterans organization in the country and, indeed, as the numbers of their veteran members has dwindled over the years owing to “natural attrition”, many of the Legion’s members have no association with veterans at all. Brelyea suggests that the Legion should licence use of the poppy symbol to other veterans organizations, with a concomitant sharing of the proceeds. I am sure that the RCL would argue that it alone is best placed to protect the meaning of the symbol and to ensure that poppies are effectively distributed in order to bring maximum returns. Last year over $16 million was raised.

Well, who knew that the innocuous looking poppy on people’s lapels on Remembrance Day carried such weighty IP concerns on its shoulders? When you drop your donation into the collection box, and pin your poppy on your jacket or shirt, remember…even the humble poppy can be controversial when it comes to trademark and copyright issues.

© Hugh Stephens 2019. All Rights Reserved

 

 

 

 

 

Content Piracy as Hybrid Warfare

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War, unfortunately, is as old as history. Usually violent, involving the use of force to compel or resist, in recent years the nature of warfare has begun to change. While physical force is still part of the military’s repertoire, today we are moving into an era of so-called “hybrid warfare” or “grey zone” strategies. There are various dimensions of this new phenomenon, including social media disinformation campaigns (particularly to manipulate election results or to create internal dissension), cyber-attacks, use of remote vehicles and drones, use of supposedly “private armies” to seize territories, economic measures such as sanctions but going beyond sanctions to include disruption of supply chains, and other measures that fall short of outright use of force, or are “plausibly deniable”.  There is a good discussion of the topic here. Continue reading “Content Piracy as Hybrid Warfare”