Musicians Might Be Able to Finally Stop Trump From Using Their Songs
In late June, the Rolling Stones threatened to sue Donald Trump if he kept using their songs in his reelection campaign. Their 1969 classic “You Can’t Always Get What You Want” had served as the unlikely closing song at many of Trump’s political appearances, including his recent rally in Tulsa, Oklahoma. Four years ago, Mick Jagger acknowledged what has become the reality for many artists dismayed by politicians’ use of their music. “You can’t stop them,” he said. “They can play what they want.”
The history of candidates using songs, and artists complaining about it, is long and tortuous. But like so many other conflicts, such episodes have become especially common during the divisive Trump era. In just the last few weeks, Neil Young, Dexy’s Midnight Runners, Panic! at the Disco singer Brendon Urie, and the estate of Tom Petty have all objected to their music being played at Trump events. The extensive list of artists who’ve called out the president’s use of their songs reads like a mini-Rock & Roll Hall of Fame, including R.E.M., Guns N’ Roses, Queen, Ozzy Osbourne, Earth, Wind & Fire, Prince’s estate, as well as Adele and Pharrell.
Unsurprisingly, the Trump campaign has tended to play whatever it wants even after artists complain. “I’m sitting here watching all these people tweeting, ‘You don’t have the rights to use my music,’” industry lawyer Dina LaPolt says. “He’ll just use it.” But with less than four months until Election Day, the Rolling Stones’ recent litigation threat shows how some artists are turning up the pressure on a problem where they’ve traditionally had little recourse.
Related: Rolling Stones threaten lawsuit over Trump's music use
Under the byzantine rules for music copyright in the United States, performers don’t have much control over who plays their music in public. Bars, restaurants, and even political campaigns can usually shield themselves from copyright complaints by acquiring licenses for vast troves of music through the performing rights organizations ASCAP and BMI. The Trump campaign has a “political entities license” authorizing it to use more than 15 million songs, a BMI spokesperson confirmed in a statement to Pitchfork.
But the special licenses for political campaigns include a provision that allows certain songs to be excluded if the artists object to their use. The BMI spokerson said that the organization received such an objection and gave the Trump campaign a heads-up that the Rolling Stones’ songs were no longer covered by its license. BMI also advised the campaign that “any future use of these musical compositions will be in breach of its license agreement with BMI,” according to the statement.
This licensing carve-out could strengthen the Rolling Stones’ legal hand if the Trump campaign plays their music again. “An exclusion from a political entities license would ensure that no Rolling Stones works could be used in connection with future political campaign events,” says industry lawyer James Sammatoro.
But LaPolt, who battled Trump—and won—two years ago on behalf of Aerosmith’s Steven Tyler, argues that the licensing exclusion won’t cut it. For better or worse, she maintains, organizations like ASCAP and BMI have a legal obligation to make all of their songs available. For her part, LaPolt says she shut the Trump campaign down by arguing that its use of Aerosmith songs created a false impression of an endorsement under a federal trademark law called the Lanham Act—in other words, Trump playing Aerosmith songs made it look like Tyler supported the president, which he didn’t. “You’ve got to go through other means,” LaPolt explains. “You can’t say, ‘Oh, take my music down.’” In 2018, a lawyer for Rihanna made a similar false-endorsement argument after Trump used her song “Don’t Stop the Music,” and by all appearances, that really did stop the music. Another potential avenue for challenging political use of a song is through state-level “right of publicity” laws, which prohibit using a person’s “likeness” without their consent.
Trump hasn’t walked off the stage to “You Can’t Always Get What You Want” in roughly two weeks. (The Trump campaign’s press office didn’t respond to Pitchfork’s request for comment.) If he does again, and the Rolling Stones take the unusual step of actually suing, the case would quickly get bogged down in the specific details of how the song was used—and would surely last until long after the polls close on November 3. “Almost all of these disputes are resolved by public pressure and a cost-benefit analysis of the bad publicity,” says Kevin Casini, a professor of entertainment law at the Quinnipiac School of Law in Connecticut. In order for the Rolling Stones and other artists to get what they want, Trump might finally need to discover something he’s never shown any sign of possessing: a sense of shame.
Originally Appeared on Pitchfork
