Trump, Copyright, and the Music Debate in Political Rallies #217

In this episode of The Screen Lawyer Podcast, host Pete Salsich dives into the controversy surrounding the use of music in political campaigns, particularly focusing on the Trump campaign's repeated use of copyrighted songs without proper permissions. He discusses the legal complexities of blanket licenses from organizations like ASCAP and BMI, the rights of artists to exclude their music from political campaigns, and notable cases like Neil Young and Eddy Grant’s lawsuits against the Trump campaign. The episode also explores broader issues of copyright, artist rights, and the potential for false endorsement claims under the Lanham Act.

Original Theme Song composed by Brent Johnson of Coolfire Studios.
Podcast sponsored by Capes Sokol.

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Transcript

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So it's hard to turn on the TV or social media these days without seeing political rallies, political commentary, and of course, music and lots and lots of complaints or interesting stories about the use of music in political campaigns. I think there's been a little confusion about that, how that works. And the Trump campaign is at the heart of all of it. Stick around. We're going to dig in. Hey there. Welcome to the Screen Lawyer Podcast. I'm Pete Salsich, The Screen Lawyer. And today in the podcast we're going to talk a little bit about music and political campaigns very much in the news these days. obviously we are at the, in the closing stages of, highly contested presidential campaign, plus lots of other campaigns going on. Very, very, interesting time, politically in our country for sure. And one of the things that we see all the time now, that social media is everywhere is these campaigns, clips of music being used in the campaigns. And I think it's been fairly well documented that the Trump campaign in particular, doesn't seem to care a whole lot about copyright law or copyright rules or permissions when it comes to the use of music. and that's, that's simply been borne out, actually, going back to when he launched his first campaign in 2016, using Neil Young's song Rockin in the Free World. and if you recall, at the time, Neil Young complained about it then and even pointed out that that song really wasn't the message that, conservatives were, espousing. It was really written against what was going on with the first President Bush, with references to thousand points of Light, etc. but young complained, about and said that he had not authorized use of that song. Fast forward to the 2020 campaign. The Trump campaign was using and again and finally Neil Young filed a copyright infringement suit. And the issue then, and the issue today has to do with, blanket licenses that are granted through ASCAP and BMI for public performances. And so this is not use of music in a video. That's a separate issue. And we're gonna talk about that in a second because of course, the Trump campaign's recently lost a lawsuit on that very issue. But the issue comes up more in the public performances because there are blanket licenses that members of ASCAP and BMI, the vast majority, the largest, group of musical artists in the world, grant these blanket licenses. So people can if you're hosting a public event, if you're hosting, if you go to a bar and they play music, that venue purchases a blanket license from ASCAP and BMI and they pay based on the size of the venue, how often they have music, etc. but there's a fee they pay. And then the license agencies, ASCAP and BMI collect those fees, and those go to the artists. But the artists don't get to say, you can't play my song in a bar. It's there's not a process or asking permission. It's simply a license. As long as you pay the fee, you can borrow from that library, that vast library of ASCAP. and that's the position that the Trump campaign. And you see lots of people, you know, screaming at each other on the internet about, well, there's a blanket license. They can do that. And generally that's true. But political campaigns are different. And so when you see lately we've seen Beyonce, Celine Dion, the Foo Fighters, ABBA, the estate of Sinead O'Connor, the State of Isaac Hayes, The White Stripes and and many more complaining about the uses of their music, in the Trump campaign, rallies, because they have argued that this blanket license does not grant that permission. And here's why. Political campaigns are a little bit different here in the ASCAP guidelines. It expressly talks about the blanket license and political campaigns. And there is the ability for an artist to identify specific songs and specific campaigns and say, do not include these songs in this campaign in the license granted to this campaign. So there's a process. And if the artist notifies ahead of time or saying it can notify saying from now on, no longer, then that song, those songs are not included in the blanket license, and it's infringement to use them without getting the permission of the artist. And none of those artists have agreed. this goes back to the issue and Neil Young's lawsuit in 2020, and one of the issues was whether this blanket license covered it. and he had notified and ASCAP had said at the time that Young had specifically notified them to exclude that song from the, blanket license. Now, when the when, Biden won that 2020 election after that, Young dropped his lawsuit. So the case never made it through the courts. And one of the issues they talked about it in a blog post back at the time, there is a, consent decree going way back 80 plus years that possibly would impact that decision, never been tested in the court and the Young campaign. I mean, excuse me. The Young lawsuit was dismissed, so we never got to find out ultimately how it works. So right now, we're operating under the world as it's governed by ASCAP’s license, which specifically gives artists the right to say no to a particular campaign. and that's an important nuance in the discussion. Political campaigns are different. And if you think about it, it makes sense, right? Because there's for a particular campaign. The artist song is being identified with the message of the campaign with this, you know, support of this particular candidate. And an artist may disagree with that candidate or may simply not want to take a position on the issue. Either way, the artist has that right. There's another possible set of claims an artist could make as well. under the right of publicity, name, image, likeness, regime. It could be considered under the Lanham Act, a false endorsement, you know, effectively saying, Neil Young or Beyonce or somebody like that supports and endorses this candidate. But how do we know? Because there's songs being played there. Surely they must have agreed. So it creates a false sense of association, of false endorsement. That's a legitimate claim under the Lanham Act. But again, in the law, we have these weird little things like strange Supreme Court precedents. And there's a case called Daystar, that held that certain claims under the Lanham Act like this, right. A publicity claim, this false endorsement claim would actually be preempted by the Copyright Act. And therefore, you could not bring these claims. In other words, the court would say your only claim here for the use of music is a copyright claim. That's the only issue. now, under the current set of laws, I think it's still infringement if the artist has said no. But again, we have that weird little consent decree that's so old it could be tested. In other words, these issues probably are not going to get all the way through the courts to decide that issue. But the point is, it's very clear, I think, in the public mind, and in the courtroom, that this use of music without permission by political campaigns does constitute infringement. We had a recent case actually just decided, weeks ago, on a lawsuit brought back in 2020 by the artist Eddy Grant and his song Electric Avenue, again against the Trump campaign. now, in that case, it was a little different because that was used in a video. So we're not in the public performance, we're not in the blanket license area. We're back. We're in an area we've talked about many times, and that's the need for a sync license, synchronization license from the copyright owners in order to synchronize prerecorded music with video and the Trump campaign tried to argue that that was fair use. They had done some, mixed it in with some different things, but ultimately, finally, last week, four years later, the court ruled that no, in fact, it was infringement. Completely rejected. The fair use defense basically said there's nothing really transformative here. It's just wholesale copying for a political campaign. had the campaign been commenting about Eddy Grant, for example, maybe you could argue that it was some level of political protected speech, but in this case, it's basically a commercial for the campaign and therefore not for use. That's the most recent. And I think that's that's consistent with other cases where the music has been used in campaign videos. So that's where that's where this stands with the Trump campaign. Interestingly, this year, we have some of the people, artists who have, vigorously complained about the infringement going on from the Trump campaign have actually agreed and authorized their songs to be used by the Harris Walz campaign. Beyoncé, famously with her song freedom, which has become essentially the campaign theme song for, the Harris Walz campaign. she complained about Trump using it, said it's not authorized, but she authorized Harris Walz to use it, and Neil Young, again, the same guy who. And if you if you know Neil Young, he normally doesn't want his music associated with anything commercial. Back to his song. This notes for you way back when he was complaining essentially about artists who who sold their music for commercials. He's always taken a position that that's not something he wanted to play with, but he expressly authorized the Harris Walz campaign to use Rockin in the Free World. Same song as Tim Walz walk off music at the DNC at the Democratic National Convention. So it just goes to show that this is an area in the political context that artists do have the right to control the use of their music. And I think it's the nature of political campaigns are unique in this space that there is this control, even in the context of a public performance, which would otherwise be perfectly permissible under a blanket license. Now, what's this going to mean? Well, I know we talk about it here. There's lots of commentary about it. Is it suddenly going to result in a bunch of lawsuits? Is the Trump campaign going to pay damages? You know, normally, when something like this happens, that's one of the conversations. Well, how much money is it worth? Is there going to be any real harm? What's going to happen next? this feels a little bit more like a steamroller to me. So this is probably not the last time this issue is going to come up. And whether this gets sorted out in any kind of damages award way down the line, we'll just have to wait and see. Something tells me that the these court cases, probably won't ever get that far, but it's a reminder that in this emerging world of the use of music on video, in public performances, in politics, everywhere, music, copyright law still applies. And in the context of a political campaign, there's a particularly nuanced approach to the blanket license, so keep that in mind. Next time you hear a song it connected with a political campaign. Ask yourself, do I think this was authorized or not? And maybe the actual words of the song might help you decide whether that's the case. So that's it for today. come back and check us out anytime. Find us wherever you get your audio podcasts. And if you're watching on YouTube, hit that like and subscribe button so you can get more content all the time. We're very happy you do that. And you can always find us at TheScreenLawyer.com. Take care.