Rolling Stones Have Clout Over Trump Campaign Song Use (2)

June 29, 2020, 10:31 PMUpdated: June 30, 2020, 5:52 PM

The Rolling Stones’ threat of legal action against President Donald Trump’s re-election campaign highlights artists’ ability to block the use of songs even when entities have permission to play the full catalog.

The band repeatedly requested that the campaign not use the band’s music before the campaign played “You Can’t Always Get What You Want” at Trump’s June 20 rally in Oklahoma. Afterward the band asked its performance rights organization, Broadcast Music Inc., to remove its music from the campaign’s “political entities license” to play BMI’s catalog, according to a BMI statement

Politicians have for decades have faced public objections from artists who don’t want their work associated with them. Acquiring the blanket licenses for vast swaths of music like BMI’s can shield a campaign from copyright complaints.

But the evolution of special licenses for campaigns from which artists can withdraw their work has created a more straightforward legal right. In the past, the blanket licenses largely limited artists to legally uncertain right of publicity or false endorsement claims, or merely public pressure on campaigns to stop using certain songs.

The carveout provisions are “certainly a stronger element” in an artists’ arsenal to control use of their work than laws granting individuals control over commercial use of their likeness, copyright attorney John Krieger of Dickinson Wright LLP said.

“The focus more on right of publicity was really to try to remedy an issue and get around the fact that it wasn’t mentioned in previous licenses,” Kreiger said. “Using right of publicity was more of a means of trying to effectuate change, and now we’re starting to get there.”

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

The Last Time?

Trump has had several rightsholders oppose music played at his Tulsa rally alone. The family of Tom Petty said in a statement that Trump didn’t have permission to use Petty’s “I Won’t Back Down.” Panic! At the Disco singer Brendon Urie also objected to the rally’s use of his band’s song “High Hopes.”

The campaign has continued to use “You Can’t Always Get What You Want” despite cease and desist letters, the Rolling Stones said in a June 27 press release. The band is working with BMI to stop further use and has threatened to sue the campaign if it keeps using the song, according to the release.

Krieger said the modern emphasis on artist and personal branding has driven artists to pay more attention to politicians using their work.

Artists with enough clout can push the organizations they pay to police their rights to act, entertainment and IP attorney Monica McCabe at Phillips Nizer LLP said.

“I think the musicians and artists are completely frustrated, particularly when you have a politician like Donald Trump who doens’t necessarily have the same viewpoint on political issues as these artists do,” McCabe said.

The language allowing control over individual songs, which has been in licensing agreements for about the last 10 years, puts the onus on the Trump campaign not to play songs if artists object.

“Either they don’t have experienced people working on it, or they don’t care,” McCabe said. “It’d be interesting to see how often the provisions have been deployed. I’m betting not a lot, but I’m also betting PROs are getting more and more pressure from big artists” to enforce them, she said.

The ambiguity of right of publicity or false endorsement application made lawsuits and precedents rare. It’s unclear whether rally use is the kind of commercial exploitation that states’ varying right of publicity laws forbid, or a member of the public would think hearing a song at a rally indicates endorsement—a core prong of trademark law.

Both would also hinge on specifics of a case—such as whether the song introduced a candidate or just filled pre-rally time—and take longer than a campaign cycle to litigate. But if the Rolling Stones or anyone else that rescinded their rights sue the next time Trump uses their music, those questions wouldn’t come into play.

“This is a warning to campaigns that they can’t just go out and choose a song just because they like the lyric or the message,” Kreiger said.

(June 29 story updated with additional reporting. Earlier version corrected timing of band request to BMI in second paragraph.)

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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