It’s become a standard feature of election season: Donald Trump uses an artist’s song without permission, as he’s wildly tone-deaf about the values of the artist, the content of the lyrics, or both. The artist then tweets about it or sends a cease-and-desist letter, and then the cycle begins anew.
Trump keeps doing it in part because he’s cretinous and loves goading liberal musicians into having to explain, yet again, that no, they do not support Trump. However, he also keeps doing it because there have been little to no monetary consequences for his (mis)use of songs.
That’s why it was so pleasing to see Eddy Grant notch a win in court last week over the campaign’s unauthorized use of “Electric Avenue” in 2020. And it only took four years of legal wrangling! But it’s likely this outcome was only because this was on video rather than at a rally. Not to mention it’s probably only a path forward for musicians with deep pockets.
Time for a moment of digression about copyright. Think of copyright protection as a bundle of sticks—a set of rights that can be separated from one another. Some musicians keep as much of that bundle as possible, but the complex scheme by which we deal with music performance in America means many artists will have licensed away some of those rights. Most relevant here is that most musicians license their music to companies like ASCAP and BMI, which then manage the performance rights and royalties.
For the artist, this is much simpler than managing their rights and trying to collect piecemeal from anyone who plays their song in public. For a business, it’s great, as they can just contract with ASCAP and BMI and play literally millions of songs at their hair salon or grocery store or political campaign. But that doesn’t give the business the right to record that performance—or to add it to a video.
Which brings it back to Eddy Grant.
In August 2020, Trump’s social media director, Dan Scavino, posted a typically unfunny video on Trump’s social platform X account. Here’s how Grant’s complaint describes it: “The Infringing Video contains a visual depiction of a high-speed red train bearing the words ‘Trump Pence KAG 2020’ in stark contrast to a slow moving handcar bearing the words ‘Biden President: Your Hair Smells Terrific’ being powered by an animated likeness of Former Vice President Biden while out-of-context excerpts of Former Vice President Biden's speeches and interviews are played over Plaintiffs' Recording.”
Grant’s representatives asked the campaign to take it down, but the campaign didn’t, so Grant sued in September 2020. Grant could sue because the campaign used the song in a video versus playing it at a rally, so the use wasn’t covered by the campaign getting a performance license. After a four-year slog, Judge John Koeltl rejected the Trump campaign’s claim that its playing of the song was fair use.
Time for more copyright digression. Sometimes, it is fine to use a copyrighted work without licensing it. Courts will evaluate how much of the copyrighted song is used, the purpose of the use, and whether the unlicensed use of the song has an effect on the market for the copyrighted song. If the use of the song is relatively minimal, or used in a nonprofit or noncommercial setting, or the song is transformed—altered in some meaningful way, like a parody—a court may determine the use was fair and reject a copyright claim.
That’s what the Trump campaign tried here, arguing that slapping 55 seconds of “Electric Avenue” alongside a crappy video was a “transformative” use of the song. The court rejected that, saying the video was a “wholesale copying of music to accompany a political campaign ad” and that the video’s creator did nothing to edit Grant’s song.
Further, the court noted that the campaign wasn’t using Grant’s song to poke fun at Grant or the song, nor was Grant’s song core to the video's message. Grant had originally asked for $300,000 in damages and has asked for attorney fees; that claim may go to a jury to determine the amount. The case was in litigation for four years, so an attorney fee award could be delightfully steep.
It’s because this case has been actively litigated by the campaign for the past four years that the recent unauthorized use of The White Stripes’ “Seven Nation Army” is so galling. The campaign was already aware that just attaching a recording to a political campaign video would not fly as a fair use defense because the court in the Grant case had already explained that reasoning back in 2021 when it refused to dismiss the case.
Nonetheless, on Aug. 29, the campaign posted a video on X of Trump boarding a plane with the “Seven Nation Army” riff playing in the background. The White Stripes contacted the campaign, but when it failed to answer, the group sued. As with Grant, it’s because the song made its way into a video that makes this type of copyright infringement lawsuit possible.
For those musicians who only have their songs blasted out at rallies, they can be largely out of luck. The Foo Fighters complained about Trump’s use of “My Hero” to introduce Robert F. Kennedy Jr. (yeesh!) but had to back off when the campaign noted they had a license to play the song. Both ASCAP and BMI allow artists to exclude specific songs from license to a particular political campaign, but the Trump campaign has ignored those exclusions in the past, merrily continuing to play Rolling Stones songs despite the exclusion.
There is a way around this, which is to just ask. That’s what the Democrats do. Vice President Kamala Harris got permission from Beyonce to use “Freedom” for her 2024 run and Gov. Tim Walz got permission from Neil Young to use “Rockin’ in the Free World” when he took the stage at the Democratic National Convention.
Trump used “Freedom” in a video nearly immediately after Harris did, stopping only when Beyonce sent a cease-and-desist letter. Trump spokesman Steven Cheung bragged to CNN that this was part of a larger strategy: “The purpose of the post just proved the point that Democrats are all about banning things, including freedom. They fell for it hook, line, and sinker.”
Cheung’s statement highlights the problem here: Trump delights in using the music of people who hate him, in being told not to do so, and in doing it anyway. It’s why the statement of the campaign’s lawyer, in response to the campaign being enjoined from using “Hold On, I’m Coming” after being sued by the estate of Isaac Hayes, rings so hollow: “[T]he campaign has no interest in annoying or hurting anyone. And if the Hayes family feels it hurts or annoys them, that’s fine, we’re not going to force the issue.”
If that were true, the campaign wouldn’t have litigated against Grant for four years. If that were true, the campaign wouldn’t have used “Hold On, I’m Coming” 134 times after being asked to stop. Unless one of these lawsuits manages to take a really significant financial bite out of Trump, the only way this will ever stop is if Trump stops running.
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