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Neil Young Sues Trump Campaign for Copyright Infringement (2)

Aug. 4, 2020, 5:39 PMUpdated: Aug. 4, 2020, 9:25 PM

Rock legend Neil Young sued Donald J. Trump for President Inc. on Tuesday for using his songs “Rockin’ in the Free World” and “Devil’s Sidewalk” during campaign events without his permission, according to a copy of the copyright infringement complaint posted on Young’s website.

Many musicians have objected to Trump’s use of their songs during his campaign, including the Rolling Stones, Panic! at the Disco singer Brendon Urie, and the estate of Tom Petty. And Twitter took down a video tweeted by Trump featuring Nickelback’s song “Photograph” after the band’s publisher complained to the company.

But Young is one the first artists to file a lawsuit over it, and the question of whether a campaign can use music without permission has rarely been litigated in court.

Read More: Rock Stars Demand Restrictions on Politicians Using Their Music

“This complaint is not intended to disrespect the rights and opinions of American citizens, who are free to support the candidate of their choice,” the complaint says. “However, Plaintiff in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate.”

Young said the two songs were played during Trump’s Tulsa, Okla., rally on June 20 and that Trump has also played the two songs at other rallies and political events. The campaign never received a license to play the songs at “any public political event,” the complaint says. It noted that Young has objected to Trump’s use of his songs since Trump played “Rockin’ in the Free World” during his initial presidential campaign announcement in 2015.

Historically, acquiring blanket licenses to play music at public events has shielded campaigns and venues from copyright liability. But the Rolling Stones removed their music from Broadcast Music Inc.'s “political entities license” after Trump’s Tulsa rally, and both the band and BMI have warned that the continued use of its songs could breach the campaign’s license agreement with the performing rights organization.

Frank Scibilia, a partner at Pryor Cashman LLP in New York who specializes in copyright law and isn’t involved in the case, said that artists often assert multiple types of claims in this context—like right of publicity and false endorsement claims—because the law hasn’t fully developed in this area. But the fact that Young’s complaint appears to only include one copyright claim indicates he could be “pretty confident” that the campaign either doesn’t have a license or that his works are excluded from it under a provision like BMI’s political exception.

Scibilia said this has been a growing issue for musicians, and noted the political use of their songs at a time when “everything is broadcast everywhere, everyone sees everything, and everyone hears it” may make them more likely to push back.

The Artists’ Rights Alliance urged lawmakers last week to prevent campaigns from using music without permission, in a letter signed by prominent musicians such as Aerosmith, R.E.M., Cyndi Lauper, and Lorde.

John L. Krieger, an intellectual property attorney with Dickinson Wright PLLC in Las Vegas who also isn’t involved in this case, said that Young “may be looking to do more than take on Mr. Trump” with his complaint. He could be trying to “shine a light on an issue that Congress has thus far refused to address—extending moral rights to musical works,” Krieger said.

“I don’t know that this case will open the floodgates to litigation because I think most artists have neither the time nor the money to get involved in litigation, but it will be interesting to see how far the case goes,” he said.

Cause of Action: Copyright infringement.

Relief: Statutory damages, injunctive relief.

Response: The Trump campaign didn’t immediately respond to a request for comment.

Attorneys: Silverstein & Saperstein and Robert S. Besser of Santa Monica, Calif., represent Young.

The case is Young v. Donald J. Trump for President Inc., S.D.N.Y., No. 1:20-cv-06063, complaint filed 8/4/20.

(Updated with additional attorney comment in paragraphs 7-10.)

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagan at ccastro-pagan@bloomberglaw.com

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