Trump Campaign Videos Spark Music Copyright Lawsuits: Explained

New lawsuits accusing Republican presidential nominee Donald Trump of copyright infringement continue the evolving legacy of disputes between politicians using music in their campaigns and artists who blanch at the association and want to prevent it.

Rock musicians Jack and Meg White’s Sept. 9 complaint and part of the August lawsuit brought by the estate of soul legend Isaac Hayes focus not on the public performance right campaigns obtain to play songs at events, but rather on the legally distinct right to synchronize a song into an audiovisual work, which requires a specific license.

Securing a “synch” license diverges substantially from acquiring the public performance right, thanks to the byzantine web that is music copyright law.

The suits add to a long history of musicians sparring with politicians they disagree with over use of their songs for political purposes without permission and, the artists say, in violation of US copyright law.

Jack and Meg White’s lawsuit accused Trump of violating their rights by playing the iconic opening bass riff from their former band The White Stripes’ 2003 anthem “Seven Nation Army” over video of him walking his campaign airplane’s stairs. Hayes’ estate said Trump played “Hold On (I’m Coming)” at campaign events without a license and posted videos of it online. A judge barred Trump from using the song as litigation progresses, though he didn’t order him to take down the videos.

The varying rights implicated in the cases capture the legal labyrinth campaigns have to navigate in the world of music rights.

1. How do campaigns license music to play at events?

The Copyright Act gives artists the exclusive rights to reproduce and publicly perform their work. Infringing those rights can be the basis for an lawsuit.

Bars, restaurants, stadiums, and other entities generally acquire licenses to play recorded music from one-stop shops known as performance rights organizations, or PROs, such as Broadcast Music Inc. and the American Society of Composers Authors and Publishers. That lets them use any of the millions of songs under the PRO’s umbrella, and the organization then pays rightsholders—usually music publishing companies—based on how much their music gets played.

For decades, an artist could do little about political campaigns using their song without pulling their music from the PRO entirely, cutting off an important revenue stream. Publicly disavowing the candidate was often their only recourse. Around 2012, though, both ASCAP and BMI began letting rightsholders pull music from specific campaigns’ licenses. BMI requires a campaign to play a rightsholder’s work before an artist can block its use, a spokesperson said. ASCAP didn’t respond to a request for clarification, but its website suggests artists can proactively stop a campaign from using their songs; the general instructions to pull music don’t mention prior use.

2. What’s the difference between using music at events and in videos?

There are two fundamentally different copyrights in music: composition rights—owned by the person who wrote the lyrics and music—and the sound recording rights of the people who performed in a particular recording of the song, generally owned by music labels.

Importantly, unlike publicly playing a recording, putting a song in a video requires permission from both the owner of the rights in the recording and the owner of the composition right. What’s more, PROs don’t offer synch licenses, so campaigns have to go to the separate rightsholders rather than those clearinghouses if they want to use a song in a video.

For instance, Hayes never owned the sound recording to the famous version of “Hold On (I’m Coming)"; it was recorded by R&B duo Sam & Dave. His suit relies on his composition right.

The process of negotiating every use with a rightsholder may seem taxing relative to the fixed-price, one-stop shops for other rights. But an ecosystem of labels, intermediary companies, entertainment lawyers, and pricing conventions have developed around the synchronization right. Still, rightsholders—both composition and sound recording, if different—ultimately have to agree to grant the license, which can create headaches for campaigns and other users like advertisers and filmmakers.

3. So the rightsholder can block any video use?

Typical infringement defenses of course apply, though courts have generally sided with copyright owners over campaigns. The fair use doctrine allows unauthorized uses of copyrighted works in some circumstances. Statutory factors that weigh in favor of fair use include the use being noncommercial in nature and the use transforming the work to serve a different purpose than the original.

That defense is a fact-specific inquiry that requires examination of the how exactly a campaign or politician used a song. Courts that have weighed in usually say use in a campaign doesn’t inherently turn the song into more protected political speech, as it doesn’t generally transform the song’s core purpose—to sound appealing—or the feelings it conveys.

For example, in 2021, a federal judge refuted Trump’s claim in a dismissal bid that his use of “Electric Avenue” in a campaign video was fair use. “Nothing about the song was integral to the video’s political message,” the judge said, noting it was merely used “to make the video more entertaining and memorable.” Trump’s motion for summary judgment in that case is pending.

Read more:

• Jack White Follows Through on Threat to Sue Trump Over Music Use
• Trump Can’t Play ‘Hold On’ by Isaac Hayes During Copyright Suit
• Trump, Campaign Sued by ‘Electric Avenue’ Musician Over Video
• Dr. Dre, Greene Feud Over Music Copyright in Politics: Explained
• Rock Stars Demand Restrictions on Politicians Using Their Music