It’s develop into a normal function of election season: Donald Trump makes use of an artist’s music with out permission, as he’s wildly tone-deaf concerning the values of the artist, the content material of the lyrics, or each. The artist then tweets about it or sends a cease-and-desist letter, after which the cycle begins anew.
Trump retains doing it partially as a result of he’s cretinous and loves goading liberal musicians into having to clarify, but once more, that no, they don’t help Trump. Nevertheless, he additionally retains doing it as a result of there have been little to no financial penalties for his (mis)use of songs.
That’s why it was so pleasing to see Eddy Grant notch a win in court docket final week over the marketing campaign’s unauthorized use of “Electric Avenue” in 2020. And it solely took 4 years of authorized wrangling! Nevertheless it’s possible this consequence was solely as a result of this was on video fairly than at a rally. To not point out it’s most likely solely a path ahead for musicians with deep pockets.
Time for a second of digression about copyright. Consider copyright safety as a bundle of sticks—a set of rights that may be separated from each other. Some musicians preserve as a lot of that bundle as potential, however the complicated scheme by which we cope with music efficiency in America means many artists could have licensed away a few of these rights. Most related right here is that almost all musicians license their music to firms like ASCAP and BMI, which then handle the efficiency rights and royalties.
For the artist, that is a lot less complicated than managing their rights and making an attempt to gather piecemeal from anybody who performs their music in public. For a enterprise, it’s nice, as they will simply contract with ASCAP and BMI and play actually tens of millions of songs at their hair salon or grocery retailer or political marketing campaign. However that doesn’t give the enterprise the proper to report that efficiency—or so as to add it to a video.
Which brings it again to Eddy Grant.
In August 2020, Trump’s social media director, Dan Scavino, posted a sometimes unfunny video on Trump’s social platform X account. Right here’s how Grant’s grievance describes it: “The Infringing Video contains a visual depiction of a high-speed red train bearing the words ‘Trump Pence KAG 2020’ in stark contrast to a slow moving handcar bearing the words ‘Biden President: Your Hair Smells Terrific’ being powered by an animated likeness of Former Vice President Biden while out-of-context excerpts of Former Vice President Biden’s speeches and interviews are played over Plaintiffs’ Recording.”
Grant’s representatives requested the marketing campaign to take it down, however the marketing campaign didn’t, so Grant sued in September 2020. Grant may sue as a result of the marketing campaign used the music in a video versus enjoying it at a rally, so the use wasn’t lined by the marketing campaign getting a efficiency license. After a four-year slog, Choose John Koeltl rejected the Trump marketing campaign’s declare that its enjoying of the music was truthful use.
Time for extra copyright digression. Typically, it’s tremendous to make use of a copyrighted work with out licensing it. Courts will consider how a lot of the copyrighted music is used, the aim of the use, and whether or not the unlicensed use of the music has an impact available on the market for the copyrighted music. If using the music is comparatively minimal, or utilized in a nonprofit or noncommercial setting, or the music is reworked—altered in some significant manner, like a parody—a court docket could decide the use was truthful and reject a copyright declare.
That’s what the Trump marketing campaign tried right here, arguing that slapping 55 seconds of “Electric Avenue” alongside a crappy video was a “transformative” use of the music. The court docket rejected that, saying the video was a “wholesale copying of music to accompany a political campaign ad” and that the video’s creator did nothing to edit Grant’s music.
Additional, the court docket famous that the marketing campaign wasn’t utilizing Grant’s music to poke enjoyable at Grant or the music, nor was Grant’s music core to the video’s message. Grant had initially requested for $300,000 in damages and has requested for legal professional charges; that declare could go to a jury to find out the quantity. The case was in litigation for 4 years, so an legal professional payment award might be delightfully steep.
It’s as a result of this case has been actively litigated by the marketing campaign for the previous 4 years that the current unauthorized use of The White Stripes’ “Seven Nation Army” is so galling. The marketing campaign was already conscious that simply attaching a recording to a political marketing campaign video wouldn’t fly as a good use protection as a result of the court docket within the Grant case had already defined that reasoning again in 2021 when it refused to dismiss the case.
Nonetheless, on Aug. 29, the marketing campaign posted a video on X of Trump boarding a airplane with the “Seven Nation Army” riff enjoying within the background. The White Stripes contacted the marketing campaign, however when it didn’t reply, the group sued. As with Grant, it’s as a result of the music made its manner right into a video that makes such a copyright infringement lawsuit potential.
For these musicians who solely have their songs blasted out at rallies, they are often largely out of luck. The Foo Fighters complained about Trump’s use of “My Hero” to introduce Robert F. Kennedy Jr. (yeesh!) however needed to again off when the marketing campaign famous they’d a license to play the music. Each ASCAP and BMI permit artists to exclude particular songs from license to a selected political marketing campaign, however the Trump marketing campaign has ignored these exclusions previously, merrily persevering with to play Rolling Stones songs regardless of the exclusion.
There’s a manner round this, which is to only ask. That’s what the Democrats do. Vice President Kamala Harris obtained permission from Beyonce to make use of “Freedom” for her 2024 run and Gov. Tim Walz obtained permission from Neil Younger to make use of “Rockin’ in the Free World” when he took the stage on the Democratic Nationwide Conference.
Trump used “Freedom” in a video practically instantly after Harris did, stopping solely when Beyonce despatched a cease-and-desist letter. Trump spokesman Steven Cheung bragged to CNN that this was half of a bigger technique: “The purpose of the post just proved the point that Democrats are all about banning things, including freedom. They fell for it hook, line, and sinker.”
Cheung’s assertion highlights the issue right here: Trump delights in utilizing the music of people that hate him, in being informed not to take action, and in doing it anyway. It’s why the assertion of the marketing campaign’s lawyer, in response to the marketing campaign being enjoined from utilizing “Hold On, I’m Coming” after being sued by the property of Isaac Hayes, rings so hole: “[T]he campaign has no interest in annoying or hurting anyone. And if the Hayes family feels it hurts or annoys them, that’s fine, we’re not going to force the issue.”
If that had been true, the marketing campaign wouldn’t have litigated towards Grant for 4 years. If that had been true, the marketing campaign wouldn’t have used “Hold On, I’m Coming” 134 occasions after being requested to cease. Except one in every of these lawsuits manages to take a extremely vital monetary chew out of Trump, the one manner this can ever cease is that if Trump stops working.
