When the White Stripes announced their lawsuit against Donald Trump this past week, they became the latest band to take legal action against the former president for the unauthorized use of their music.
"This machine sues fascists," Jack White, half of the disbanded duo, wrote in an Instagram caption, alongside a picture of a complaint filed in the U.S. District Court for the Southern District of New York. In the suit, Jack and Meg White allege that the Republican nominee for president broke federal copyright law by using their song "Seven Nation Army" in a fundraising pitch posted to social media.
The group joins a who's who of music legends who say Trump's policies are discordant with the music they create — from Beyoncé and Celine Dion to the Foo Fighters and Swedish pop legend ABBA.
"As far as I know, that may be a record," attorney Jacqueline Charlesworth said of the sheer volume of complaints against Trump's music selections.
The music suits are a different breed of litigation altogether from Trump's more high-profile legal headaches, including the federal cases over his handling of classified documents and his actions on Jan. 6, 2021. While those cases are testing the limits of presidential immunity, the lawsuits brought by the musicians have opened a window into the complex legal landscape that politicians and their campaigns must navigate when using music — particularly when it comes to the issue of copyrighted material.
How some campaigns try to get around copyrights
Charlesworth is an attorney at the firm Frankfurt Kurnit Klein & Selz, specializing in music licensing deals. She worked on an early music dispute, back in 2010, between the campaign of then-California state Assemblyman Chuck DeVore, a Republican who was running for the U.S. Senate, and Don Henley of the Eagles.
In that instance, the DeVore campaign had used two songs — "The Boys of Summer" and "All She Wants to Do Is Dance" — in political spots meant to ridicule then-President Barack Obama.
In its defense, DeVore's camp argued unsuccessfully that it had rights to the music under the doctrine known as fair use, which makes specific exceptions for use of copyrighted materials.
One of the exceptions in the law allows the original song to be used as part of parody or commentary on the original composition — thus transforming the work. In the Henley case, the judge wasn't convinced that this was what the DeVore campaign had done.
"Look, this is not a transformative use. You're just using the music to promote your campaign," Charlesworth recalled of the decision.
"A songwriter or an artist should have the ability and right to — as they do under copyright law — control the use of their work, especially in a political context," Charlesworth said.
It can be tough for artists to raise claims
While Henley may have prevailed in his case, for most musicians, success is far from guaranteed. Copyright law is complicated, and legal experts say that for many artists, even if they disagree with their music being widely broadcast in a manner they did not agree to, seeking a court-ordered legal remedy can be too costly and time-consuming to pursue.
Larry Iser is an attorney at the law firm KHIKS who has represented musicians in legal spats with politicians over unauthorized use of their music.
"The notion of political candidates attempting to associate themselves with the fans of iconic musical artists is nothing new. What's new this time around with Trump is, in the past, when artists have complained, pretty much, the political campaigns respected that and stopped using songs. But it got very bad with Trump," Iser said.
For a campaign to use an artist's song, it typically needs to use one of the two main organizations that grant licenses to publicly broadcast music: ASCAP and BMI.
Artists can opt out of having their music played by certain groups if they wish, Iser explained. But if a campaign refuses to drop the song at that point, it constitutes copyright infringement.
For example, the Trump campaign is being sued by the estate of Isaac Hayes over Trump's use of the 1960's hit "Hold On, I'm Coming" at his rallies.
Attorneys for Trump have tried to beat back the suit by calling into question the estate's ownership of the copyright and by also raising a fair use argument. The Trump campaign has not responded to a request for comment from NPR.
Nonetheless, U.S. District Judge Thomas Thrash in Atlanta this month issued a temporary injunction on the candidate, prohibiting him from using the song going forward. The judge in that suit drew precedent from a case that Iser brought to court in 2008 and Charlesworth's 2010 suit, which successfully argued against campaigns using their clients' music in promotional materials.
"The campaign has no interest in annoying or hurting anyone," Ronald Coleman, an attorney for Trump, said to reporters of the judge's ruling. "And if the Hayes family feels it hurts or annoys them, that's fine — we're not going to force the issue."
Normally, Iser said, it wouldn't go that far.
"Here's the reason you see so many artists going to social media to proclaim that the Trump campaign does not have the right to use their music," Iser said. "And that's because lawsuits are very, very expensive."
"The expense of the lawsuit, which, by the way, is incurred on both sides, is typically enough to cause most campaigns to stop using the song when they're approached by an aggrieved artist," he said.
300x250 Ad
300x250 Ad