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 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.”