Within the deluge of articles and news reports regarding the Trump campaign and the recent election, the most unlikely headline of the bunch to catch my eye involved the Village People. Trump’s consistent use of the Village People classics, “Macho Man” and “Y.M.C.A.” during his rallies had garnered attention after Victor Willis—one of the original Village People—responded. In a statement made through his publicist, Willis revealed that he had not only publicly condemned Trump’s use of the songs on numerous occasions, but also had issued a cease and desist letter upon Trump’s campaign to no avail. He stated that this was due to the fact that “copyright law made it possible for him to ignore us,” citing existing blanket licensing as the main impediment to his cause.
Over the past four years of Trumps’ presidency, I have taken note of the many celebrities and public figures who have made their stances known regarding the President. Among these, musicians especially have aimed their criticisms at him—often targeting his use of their music at his rallies throughout his campaign.
At the time of publication, 21 artists—including Adele, Neil Young, Elton John, Rihanna, and Queen, to name a few—have publicly responded to this practice of the president. Their range of responses have varied from public requests and cease and desist letters, to lawsuits. All have been met with varying results. Though their statements differ in nature, the common claim among them is that the president’s use of their songs constitutes a political endorsement that they have not consented to making.
It is first worth briefly summarizing the concept of fair use, codified in 17 U.S.C. § 107. When determining if an actor’s use of a work falls under fair use, there are four factors to consider: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. For the purposes of this inquiry, the fourth factor is the most relevant. Artists may reasonably argue that a particular politician’s use of their copyrighted work at an event may adversely affect the future marketability and/or value of their work, constituting a violation of fair use.
Especially during this era of hyperpolarization among political ideologies, association with a certain political group or politician could seriously impact an artist’s revenues and reputation. For this reason, artists have stressed that obtaining artists’ express and individualized permission for use of their works in a political campaign is key. In fact, recently a number of musicians—including Mick Jagger, Sia, and Lorde —signed onto an open letter with the Artist Rights Alliance demanding that politicians obtain their permission to play their music at political campaign events. Of note, this is a live issue currently being considered by Congress, as evidenced by the recent testimony of Grammy award-winning Gospel singer and songwriter Yolanda Adams before the Senate Committee on the Judiciary Subcommittee on Intellectual Property on this issue.
Despite this wave of artist opposition, however, the existing scheme of blanket licensing seems to be the way in which Trump’s campaign has been able to evade legal repercussions thus far. Blanket licensing is essentially a streamlined way to provide publishers—in this case, venues— the licensing they need to be able to utilize certain artists’ music. If musicians are members of performance rights organizations like ASCAP or BMI, their music is entered into a sort of catalogue from which license-holders can choose. The idea behind the practice is that obtaining individual licenses from every artist would be cumbersome and impracticable, while paying a singular fee to ASCAP or BMI for content access is more manageable.
Musicians do have a few options as it pertains to working around blanket licensing, however. According to guidelines surrounding ASCAP’s Political Campaign License and BMI’s Political Entities License, members can contract to exclude specific songs from particular political campaigns’ licenses, if they so choose. Unfortunately, though, it seems the Trump campaign has been undeterred by this—as evidenced by their failure to respect the Rolling Stones’ exclusion despite numerous cease and desist letters from BMI. ASCAP has also stated that, even with proper licensing, artists can still take legal action against political campaigns with claims based on an artist’s right of publicity, the Lantham Act, or false endorsement. As of now, according to the ABA Journal, these legal theories have not yet been tested in court.
In an otherwise unprecedented move, singer-songwriter Neil Young recently brought a copyright infringement suit against the Trump campaign for its use of his songs “Rockin’ in the Free World” and “Devil’s Sidewalk” at the President’s rallies this summer. Neil Young v. Donald J. Trump for President, Inc., No. 1:20-cv-06063-NRB (S.D.N.Y. filed Aug. 6, 2020).
Though the complaint was only filed in August, Young’s battle with the Trump campaign over these works has been going on for years. Since Trump first began campaigning in 2015, Young has made both public requests and submitted a cease and desist letter to establish his disapproval of the campaign’s uses of his music. As Young wrote on his website, however, he soon found that despite his lack of permission, Trump’s campaign did have the legal right to use the songs—apparently due to blanket licensing. Years later, however, Young followed in the footsteps of many other artists and has since removed the songs at issue from ASCAP’s political license. Trump’s campaign, nonetheless, utilized the songs once again at his rally in Tulsa, Oklahoma in June 2020. Young’s complaint states that at the time of the Tulsa rally, Trump’s campaign did not have a license or Young’s permission to play his songs at the event.
This case is quite significant as it marks the first time that these political license exclusions will be challenged in practice. Concerns have been raised, however, regarding the legality of such exclusions under both ASCAP and BMI’s regulatory agreements with the federal government. These agreements—known as consent decrees – were entered into in 1941 “to address competitive concerns arising from the market power [ASCAP and BMI] acquired through the aggregation of public performance rights held by their member songwriters and music publishers.” The Department of Justice is also currently conducting a review of these decrees while this case is active. It will be interesting for artists’ rights activists to see if and how the validity of these political license exclusions will be upheld both by the DOJ and within the bounds of Young’s case.