Artists face uphill fight over political use of songs
On Election Day in 2018, Neil Young posted a frustrated statement about President Donald Trump.
Three years earlier, Trump had used Young’s song “Rockin’ in the Free World” — a protest against injustice — when announcing his campaign, drawing Young’s ire. With the divisive midterms underway, Young once again complained, yet said he had no legal recourse to stop Trump from using his music.
“Legally, he has the right to,” Young wrote on his website, “however it goes against my wishes.”
Earlier this month, Young finally sued Trump’s campaign over the use of “Rockin’ in the Free World” and another song, “Devil’s Sidewalk,” both of which were played at Trump’s rally in Tulsa, Oklahoma, in June. In his suit, the musician accused the campaign of copyright infringement for playing the tracks without a license, and asked for the campaign to be ordered to stop using them, as well as for statutory damages.
Young’s complaint said 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.”
What changed in the intervening years, intellectual property experts say, is a new strategy by musicians to stop political candidates from using their songs without permission, though the legality of their approach is uncertain.
For years, musicians and songwriters have balked when politicians play their songs at rallies. A politician’s embrace of their work can imply an endorsement, they say, or distort a song’s meaning — as when President Ronald Reagan praised Bruce Springsteen in a speech in 1984, after a conservative columnist’s misinterpretation of the bleak “Born in the U.S.A.”
In the Trump era, this conflict has only grown more intense, as the president has drawn condemnations from a huge range of acts for using their music — such as Rihanna, Elton John, Pharrell Williams, Axl Rose, Adele, R.E.M., and the estates of Tom Petty and Prince — though Trump has often responded to their complaints with defiance.
“I think he is just extending a big middle finger to musical artists to say, ‘You can’t stop me,’” said Lawrence Y. Iser, a lawyer who has handled several
lawsuits over campaigns’ use of copyrighted songs, including one filed in 2010 by David Byrne against Charlie Crist, then the governor of Florida.
Yet artists have had little power to block political use of their songs. Most campaigns have the same legal cover to play songs that radio stations or concert halls do — through blanket licensing deals from entities such as ASCAP and BMI, which clear the public performance rights for millions of songs in exchange for a fee. ASCAP and BMI even offer special licenses to campaigns, letting them use songs wherever they go.
For artists such as Young and the Rolling Stones — whose 1969 song “You Can’t Always Get What You Want” has been the closing theme for countless Trump rallies — their involvement in those deals meant they could not take legal action.
But in June, the Stones said they would sue if Trump used their music again, and both ASCAP and BMI said that at the band’s request they had removed its songs from the list of works offered to campaigns. (The rules for using a song in a film or commercial are clearer: Direct permission from a writer or their publisher is needed.)
ASCAP and a lawyer for Young both said that “Rockin’ in the Free World” and “Devil’s Sidewalk” had similarly been removed from ASCAP’S political license.
Yet it is not clear whether such withdrawals are allowed under ASCAP and BMI’S regulatory agreements with the federal government, which were instituted decades ago to prevent anti-competitive conduct.
Known as performing rights organizations, ASCAP and BMI act as clearinghouses for the legal permissions that any radio station, digital music service or shopping mall needs to play copyrighted songs. The organizations’ agreements with the Justice Department, known as consent decrees, set out strict rules meant to preserve a fair marketplace, such as offering their catalogs of songs to any “similarly situated” party that wants to use their music.
“Artists are faced with an uphill legal battle for asserting their rights to prevent politicians with whom they disagree from performing their songs,” said Christopher J. Buccafusco, a professor at Cardozo Law School in New York City. “They may have some options to do so, via the withdrawal of the political license, but those have dubious validity.”
ASCAP and BMI both believe their consent decrees allow the writers and publishers they represent to withdraw material under certain conditions, including if a particular use could damage the economic value of a song’s copyright.
“BMI does not remove a song from the license in order to achieve higher rates or for any reason other than that the rights holders believe the association of their song with a campaign is an implied endorsement and diminishes the value of that work,” said Stuart Rosen, BMI’S general counsel.
A spokeswoman for the Trump campaign did not respond to a request for comment.
Young’s case is being closely watched as a test of artists’ power to protect their work against political use.
With the pandemic shutting down most rallies and many convention events, it is possible that the issue will be moot for the remainder of the 2020 campaign. But it might just be a matter of time before the issue flares up again, and artists as well as lawyers are watching the moves by Young and the Stones for clues.
Buccafusco, a specialist in intellectual property issues, said that the best avenue for artists’ complaints might be outside the law — and that a politician’s use of their song can serve as an opportunity for those artists to articulate their own positions and clarify the messages in their work.
“Their best recourse is probably one that they have been using for many years,” Buccafusco said, “which is to complain publicly and engage in shaming sessions, which very often have won.”