Announcing his presidential candidacy Tuesday, Donald Trump played a Neil Young song, "Rockin' in the Free World." Young's management company immediately objected. "Donald Trump was not authorized to use 'Rockin' in the Free World' in his presidential candidacy announcement," the company said in a statement. "Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America."
Similar issues have popped up many times in the past, usually in the context of a Republican candidate playing music by an artist, usually a Democrat, who objects to its use in the context of a GOP political event. The Republican almost always backs down. That is why so many GOP campaign events feature a relatively narrow playlist of country music songs, the writers of which apparently do not object to exposure at Republican rallies.
But perhaps it is time for a Republican candidate to fight back. There is no legal reason why Trump could not play "Rockin' in the Free World" at his event yesterday, provided that Trump paid the appropriate fee for the right to use the music. And in many of the most common circumstances of life on the campaign trail, Republicans who pay those appropriate fees are as entitled as anyone else to use any artist's music they choose.
The two biggest music rights organizations are the American Society of Composers, Authors and Publishers, or ASCAP, and Broadcast Music, Inc., or BMI. Music composers, like Young, enter into agreements with a rights organization, which then tracks use of Young's songs and collects a fee from organizations and venues, like convention centers or shopping malls, that use those songs. If the venue at which an event is held has purchased a "public performance" license, or if the campaign itself has purchased such a license, it would be free to play an artist's songs. It doesn't have to ask for the artist's permission.
"The permission is what's granted when you pay the fee," says Sherwin Siy, an expert at Public Knowledge, a Washington, D.C.-based nonprofit organization focusing on intellectual property. "When you sign up with ASCAP or BMI, what you are saying is, 'I am giving you the right to grant other people permission to play the song I wrote in exchange for collecting the royalties." The system is designed to protect the songwriter's property from being used without compensation, not to approve every context in which the song is used.
By the way, all of this concerns the writer of the song, not the performing artist. As it happens, Young wrote as well as performed "Rockin' in the Free World," but the rights being protected by the payment of the fee are his as a writer. If Trump had played a cover version of the song, the rights involved would still be Young's.
It is also important to note that all this refers to what might be called the ordinary use of music at a campaign rally. Say the rally begins a noon, with the doors opening at 11. As people arrive, the campaign plays music while the room fills up. That's the kind of use being discussed here.
The situation might be different if the candidate made a particular song his theme song, that is, played it every time he took the stage. And it is certainly different if a candidate uses copyrighted music in a campaign ad, be it radio, TV, Internet, or something else; in that case, the artist has a much stronger claim against a campaign. In 2008, for example, Jackson Browne sued the John McCain presidential campaign, as well as the Republican National Committee, for using his song "Running on Empty" in an Internet ad. McCain and the RNC settled the next year and promised not to do it again.
But those are special cases. As far as the ordinary use of music at an event is concerned, a campaign has a lot of leeway as long as it pays the correct royalties.
ASCAP publishes guidelines for the use of copyrighted music in a campaign context. The guidelines pretty much concede that campaigns are legally entitled to use music if they pay royalties. But ASCAP lists three instances in which an artist can "criticize, or even sue" a campaign over music. The first is something called "right of publicity." The second is a trademark law known as the Lanham Act. And the third is the idea of "false endorsement." The Lanham Act is federal law, while the other two are state matters, but all are related, and as far as the ordinary use of music at campaign rallies is concerned, none guarantee that an artist would succeed in court against a campaign.
The strongest claim Young might have under those laws is that playing "Rockin' in the Free World" at a Trump rally would damage Young's trademark. Young could argue that playing the song would confuse consumers — did Neil Young really endorse Donald Trump? — and thereby tarnish the Neil Young trademark, which Young could argue stands for certain principles that are being compromised by playing the music in the Trump context.
But if Trump stood his ground — and also paid royalties and used Young's music in the ordinary course of rallies — Young would have to prove in court that he had suffered some specific damage. That might not be easy. "It's going to come down to a judge's assessment of what's really happening in the case: has this person actually been damaged?" says Peter DiCola, a Northwestern University law professor who is an expert on music copyright law. DiCola adds that a judge would also have to consider the candidate's right to express himself through the use of recorded music.
In the particular case of Trump's rally Tuesday, the new campaign says it followed the law. "Through a licensing agreement with ASCAP, Mr. Trump's campaign paid for and obtained the legal right to use Neil Young's recording of 'Rockin' In The Free World,'" the campaign told Fox News. And in the end, it seems likely Trump or any other candidate would prevail in a case involving the ordinary use of music at rallies.
Indeed, the ASCAP guidelines come close to conceding that point when they conclude: "As a general rule, a campaign should be aware that, in most cases, the more closely a song is tied to the 'image' or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song's usage in the campaign."
In the past, these cases have usually been resolved with the Republican campaign caving at the first protest from the artist involved. Even if they are on solid legal ground, campaigns don't want bad publicity. In addition, a famous artist like Young has the ability to generate news coverage with his own statements, and the campaign does not want Neil Young dumping on them until Election Day. So GOP campaigns give up. They play country music or, like Mitt Romney and Kid Rock in 2012, find a friendly rocker to give permission for repeated use of a song.
But the case is out there to be made, and perhaps Donald Trump, with his in-your-face nature and all the money in the world, is the candidate to make it. Yes, artists have rights, but royalties-paying campaigns have rights, too. "There is this idea in Europe that the artist has moral rights," says DiCola. "I don't adhere to that view, but I'm sympathetic to it. I understand what the artists are complaining about; they feel that their integrity at stake. But this is a really compelling clash of those two things."