Judge Presses Pause on Trump’s Campaign Playlist
In August, Isaac Hayes Enterprises LLC, joined the steady stream of musicians suing Donald Trump for unauthorized use of their music, and filed suit against Trump for copyright infringement related to his use of the song “Hold On (I’m Coming)” during his political rallies.[1]
Of course, Trump is not the first polarizing political figure in American history, nor is he the first to use music as part of his pollical campaign. In fact, politicians have used music as part of their campaigns beginning with George Washington.[2] This practice went largely unchallenged by musicians until Bruce Springsteen objected to Ronald Reagan’s plan to incorporate “Born in the U.S.A” into his campaign for re-election.[3] Since then, musicians have grown increasingly willing to publicly object to politicians using their music.[4] These objections usually take the form of cease and desist letters, which politicians typically follow in order to avoid bad publicity.[5] However, until recently, the question of whether musicians had legal recourse to stop politicians from using their music during campaigns was uncertain.[6] This was due in large part to the nature of music copyrights.[7]
The Copyright Act of 1976 grants a recorded piece of music two different types of rights known as: the composition rights and the sound recording rights.[8] The composition rights are given to the person who “wrote the lyrics and music,” and the sound recording rights are granted to the “people who performed in a particular recording of the song.”[9] The composition rights are typically retained by the songwriters, whereas the recording rights are owned by the recording label.[10] Furthermore, copyright owners are entitled to certain exclusive rights, such as the exclusive right to publicly perform their work.[11] This public performance right protects musicians against unauthorized public performances of their songs.[12] However, because this right is implicated every time a song is played in public—for instance at a political rally—it is virtually impossible for an artist to monitor every time their song is performed publicly.[13] In order to help with this monumental task, most artists enter into agreements with performing rights organization (PRO).[14] These agreements allow the PRO to license the “[musician’s] performing right and ensure they are paid royalties each time the song is performed in public.”[15] The PRO then grants licenses to entities such as restaurants, stadiums, and political campaigns who want to play a song in public. [16] These licenses grant them the right to use any of the millions of songs in the PRO’s catalogue. Until 2012, musicians were unable to prevent a political campaign from using their songs without removing all their music from the PRO.[17] That year two major PROs, representing ninety percent of musicians[18],began allowing musicians to pull their music from specific campaigns’ licenses.[19]
In the ongoing lawsuit with Donald Trump, Isaac Hayes’ estate claims Donald Trump never contacted them or received permission to use the song “Hold On (I’m Coming).”[20] Due to the fact he was never authorized to use the song, the complaint alleges his use of the song during his political rallies amounted to unlicensed public performances, and thus copyright infringement.[21] In the complaint, Donald’s Trump’s campaign was sent a cease-and-desist letter in 2020 for the use of “Hold On (I’m Coming)” as his outro song at his political rallies.[22] Never one to let the status quo or bad publicity get in his way, Donald Trump allegedly continued to perform the song at every one of his political rallies beginning in 2020, which amounted to one hundred and thirty-three unlicensed public performances.[23] It has yet to be proven if Issac Hayes’ estate specifically prohibited the use of the song for Trump’s campaign, or if Trump has a valid defense such as having obtained a license which included the musician’s work from a PRO. However, after being granted an Extension of Time to File Answer, Trump’s answer should be in any day now,[24]but in the meantime, a judge has issued a preliminary injunction preventing Trump’s use of the song while the litigation is ongoing. [25]
David is a Second Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal.
[1] Complaint, Isaac Hayes Enterprises, LLC v. Trump, 1:24-cv-03639, (N.D. Ga.) [https://perma.cc/37LA-TAEW].
[2] Jared Zim, Copyright and Political Campaigns: How Much Control Should a Copyright Owner Have Over the Use of Their Musical Work in a Political Campaign, 31 Univ. Miami Bus. L. Rev. 62, 65 (2023) https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1420&context=umblr [https://perma.cc/XGG3-8QSL].
[3] Eveline Chao, Stop Using My Song: 35 Artists Who Fought Politicians Over Their Music, rolling stonehttps://www.rollingstone.com/politics/politics-lists/stop-using-my-song-35-artists-who-fought-politicians-over-their-music-75611/bruce-springsteen-vs-ronald-reagan-bob-dole-and-pat-buchanan-28730/ [https://perma.cc/7XJU-QZSU].
[4] Jennifer Hussein, 23 artists who have spoken out against Donald Trump playing their music at his events, INSIDER (Jan. 24, 2024, 11:04 AM), https://www.businessinsider.com/artists-who-dont-want-trump-using-their-music-2018-11 [https://perma.cc/R58Q-U8DB].
[5] Zim, supra note 2, at 66.
[6] Travis Andrews, The Rolling Stones Demand Trump Stop Using Its Music at Rallies, But Can the Band Actually Stop Him?, W ASH . P OST (May 5, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/05/05/the-rolling-stones- demand-trump-stop-using-its-music-at-rallies-but-can-the-band-actually-stop-him/
[7] Id.
[8] Copyright Act of 1976, 17 U.S.C § 102(a)(2).
[9] Kyle Jahner, Trump Campaign Videos Spark Music Copyright Lawsuits: Explained, Bloomberg law (Sept. 13, 2024), https://news.bloomberglaw.com/ip-law/trump-campaign-videos-spark-music-copyright-lawsuits-explained [https://perma.cc/HT83-MP94].
[10] Id.
[11] 17 U.S.C § 106(4).
[12] Leah Scholnick, Licensed to Rock the Campaign Trail: Are the ASCAP and BMI Political Campaign Licenses Violating Their Antitrust Consent Decrees,43 Cardozo l. rev. 1243,1248 (2023) https://cardozolawreview.com/licensed-to-rock-the-campaign-trail-are-the-ascap-and-bmi-political-campaign-licenses-violating-their-antitrust-consent-decrees/ [https://perma.cc/HRW2-MLY2].
[13] Id.
[14] Id.
[15] Id.
[16] Jahner, supra note 9.
[17] Id.
[18] Statement of the Department of Justice on the Closing of the Antitrust Division’s Review of the ASCAP and BMI Consent Decrees [https://perma.cc/LYU8-NU9C]
[19] Id.
[20] Complaint, Isaac Hayes Enterprises, LLC v. Trump, 1:24-cv-03639, (N.D. Ga.) [https://perma.cc/37LA-TAEW].
[21]Id.
[22] Complaint at 10-11, Isaac Hayes Enterprises, LLC v. Trump, 1:24-cv-03639, (N.D. Ga.) [https://perma.cc/37LA-TAEW].
[23] Id.
[24] Order on Motion for Extension of Time to Answer, Isaac Hayes Enterprises, LLC v. Trump, 1:24-cv-03630, (N.D. Ga.) [ https://perma.cc/5BV6-RC69]
[25] Catlin Yilek, Trump campaign must stop using Isaac Hayes song after lawsuit from family, cbs news (Sept. 4, 2024) [https://perma.cc/2929-TQ5K].
