Musicians Make Novel Argument to Keep Trump from Using Their Songs

Musicians have been trying for years to control whether and which politicians may play their music at events. Many see their efforts as a natural reaction to a legitimate concern with having their art associated with someone whose views may not align with their own. As seen in a recently filed lawsuit by Neil Young against President Trump’s reelection campaign, musicians are trying out new strategies.

There is no love lost between Young and President Trump. The President has been using Young’s songs at rallies and events ever since he announced his campaign in 2015. This never sat well with Young who expressed his displeasure numerous times online and in interviews. Young’s posts were laced with frustration as he conceded that “legally he has the right to” but added, “however it goes against my wishes.” On election day in 2018, Neil Young posted a frustrated statement about President Trump and his continued use of Young’s music at events.

Young’s gripe with Trump’s use of his music is no recent phenomenon. Musicians and songwriters have balked when politicians play their songs at public events for decades. A famous example is Bruce Springsteen’s objection to Ronald Reagan’s campaign’s use of “Born in the U.S.A.” at campaign events in 1984. Numerous other artists have objected to political co-opting of their music over the intervening years.

Young’s recently filed lawsuit takes issue with President Trump’s use of “Rockin’ in the Free World” and another song, “Devil’s Sidewalk,” at the President’s rally in Tulsa, Oklahoma in June. In his suit, the musician accused the President’s campaign of copyright infringement for playing the songs without a license. The lawsuit seeks to enjoin the campaign from using the songs as well as an award of statutory damages. In his complaint, Young contends that he “in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate.”

Understanding the claims of the lawsuit requires some background knowledge of music licensing. Most musicians are registered with a Performance Rights Organization such as the American Society of Composers, Authors, and Publishers (often referred to as ASCAP) or Broadcast Music Inc. (often referred to as BMI) which then licenses music to third parties and collects royalties for the copyright holders. Political campaigns typically enter blanket license deals with ASCAP and BMI that give the campaigns the ability to use songs from the artists, like Young, who have granted ASCAP and BMI the right to license their music. Alternatively, campaigns also rely on the licenses obtained by the venues where the songs are being played.

But if the Trump campaign and/or the Tulsa venue had a blanket license, this begs the question of how can Neil Young file a copyright infringement suit against the campaign? A license is a complete defense to infringement—provided that the complained of use is within the scope of the license.

The suit will rise or fall on the answer to the question of whether the blanket license including the right to play “Rockin’ in the Free World” and “Devil’s Sidewalk” at political events. ASCAP and one of Young’s lawyers claim that “Rockin’ in the Free World” and “Devil’s Sidewalk” had been removed from ASCAP’s political license. Yet it is not clear whether such withdrawals are legally permissible, which is why Young lawsuit has drawn so much attention from music and copyright law enthusiasts around the country.

ASCAP and BMI are both subject to consent decrees entered years ago with the Justice Department to prevent anticompetitive conduct. These consent decrees set out strict rules meant to preserve a fair marketplace and require ASCAP and BMI to offer their catalogs of songs to any “similarly situated” party that wants to use their music. The performance rights organizations claim that their consent decrees allow artists to withdraw material under certain conditions, including if a particular use could damage the economic value of a song’s copyright.

Young’s lawsuit will test the legality of this previously untested strategy. The lawsuit also comes in the wake of the Justice Department’s announcement of its review of ASCAP and BMI’s consent decrees.

A copy of the complaint can be obtained here.

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