It’s change into a typical function of election season: Donald Trump makes use of an artist’s track with out permission, as he’s wildly tone-deaf concerning the values of the artist, the content material of the lyrics, or each. The artist then tweets about it or sends a cease-and-desist letter, after which the cycle begins anew.
Trump retains doing it partly as a result of he’s cretinous and loves goading liberal musicians into having to elucidate, but once more, that no, they don’t help Trump. Nonetheless, he additionally retains doing it as a result of there have been little to no financial penalties for his (mis)use of songs.
That’s why it was so pleasing to see Eddy Grant notch a win in court docket final week over the marketing campaign’s unauthorized use of “Electrical Avenue” in 2020. And it solely took 4 years of authorized wrangling! However it’s probably this end result was solely as a result of this was on video slightly than at a rally. To not point out it’s most likely solely a path ahead for musicians with deep pockets.
Time for a second of digression about copyright. Consider copyright safety as a bundle of sticks—a set of rights that may be separated from each other. Some musicians hold as a lot of that bundle as doable, however the advanced scheme by which we cope with music efficiency in America means many artists may have licensed away a few of these rights. Most related right here is that the majority musicians license their music to firms like ASCAP and BMI, which then handle the efficiency rights and royalties.
For the artist, that is a lot less complicated than managing their rights and attempting to gather piecemeal from anybody who performs their track in public. For a enterprise, it’s nice, as they’ll simply contract with ASCAP and BMI and play actually thousands and thousands of songs at their hair salon or grocery retailer or political marketing campaign. However that doesn’t give the enterprise the suitable to file that efficiency—or so as to add it to a video.
Which brings it again to Eddy Grant.
In August 2020, Trump’s social media director, Dan Scavino, posted a usually unfunny video on Trump’s social platform X account. Right here’s how Grant’s criticism describes it: “The Infringing Video accommodates a visible depiction of a high-speed pink prepare bearing the phrases ‘Trump Pence KAG 2020’ in stark distinction to a sluggish shifting handcar bearing the phrases ‘Biden President: Your Hair Smells Terrific’ being powered by an animated likeness of Former Vice President Biden whereas out-of-context excerpts of Former Vice President Biden’s speeches and interviews are performed over Plaintiffs’ Recording.”
Grant’s representatives requested the marketing campaign to take it down, however the marketing campaign didn’t, so Grant sued in September 2020. Grant may sue as a result of the marketing campaign used the track in a video versus taking part in it at a rally, so the use wasn’t coated by the marketing campaign getting a efficiency license. After a four-year slog, Choose John Koeltl rejected the Trump marketing campaign’s declare that its taking part in of the track was honest use.
Time for extra copyright digression. Generally, it’s wonderful to make use of a copyrighted work with out licensing it. Courts will consider how a lot of the copyrighted track is used, the aim of the use, and whether or not the unlicensed use of the track has an impact available on the market for the copyrighted track. If the usage of the track is comparatively minimal, or utilized in a nonprofit or noncommercial setting, or the track is remodeled—altered in some significant method, like a parody—a court docket might decide the use was honest and reject a copyright declare.
That’s what the Trump marketing campaign tried right here, arguing that slapping 55 seconds of “Electrical Avenue” alongside a crappy video was a “transformative” use of the track. The court docket rejected that, saying the video was a “wholesale copying of music to accompany a political marketing campaign advert” and that the video’s creator did nothing to edit Grant’s track.
Additional, the court docket famous that the marketing campaign wasn’t utilizing Grant’s track to poke enjoyable at Grant or the track, nor was Grant’s track core to the video’s message. Grant had initially requested for $300,000 in damages and has requested for lawyer charges; that declare might go to a jury to find out the quantity. The case was in litigation for 4 years, so an lawyer charge award might be delightfully steep.
It’s as a result of this case has been actively litigated by the marketing campaign for the previous 4 years that the latest unauthorized use of The White Stripes’ “Seven Nation Military” is so galling. The marketing campaign was already conscious that simply attaching a recording to a political marketing campaign video wouldn’t fly as a good use protection as a result of the court docket within the Grant case had already defined that reasoning again in 2021 when it refused to dismiss the case.
Nonetheless, on Aug. 29, the marketing campaign posted a video on X of Trump boarding a aircraft with the “Seven Nation Military” riff taking part in within the background. The White Stripes contacted the marketing campaign, however when it did not reply, the group sued. As with Grant, it’s as a result of the track made its method right into a video that makes any such copyright infringement lawsuit doable.
For these musicians who solely have their songs blasted out at rallies, they are often largely out of luck. The Foo Fighters complained about Trump’s use of “My Hero” to introduce Robert F. Kennedy Jr. (yeesh!) however needed to again off when the marketing campaign famous they’d a license to play the track. Each ASCAP and BMI enable artists to exclude particular songs from license to a selected political marketing campaign, however the Trump marketing campaign has ignored these exclusions prior to now, merrily persevering with to play Rolling Stones songs regardless of the exclusion.
There’s a method round this, which is to only ask. That’s what the Democrats do. Vice President Kamala Harris received permission from Beyonce to make use of “Freedom” for her 2024 run and Gov. Tim Walz received permission from Neil Younger to make use of “Rockin’ within the Free World” when he took the stage on the Democratic Nationwide Conference.
Trump used “Freedom” in a video almost instantly after Harris did, stopping solely when Beyonce despatched a cease-and-desist letter. Trump spokesman Steven Cheung bragged to CNN that this was half of a bigger technique: “The aim of the publish simply proved the purpose that Democrats are all about banning issues, together with freedom. They fell for it hook, line, and sinker.”
Cheung’s assertion highlights the issue right here: Trump delights in utilizing the music of people that hate him, in being instructed not to take action, and in doing it anyway. It’s why the assertion of the marketing campaign’s lawyer, in response to the marketing campaign being enjoined from utilizing “Maintain On, I’m Coming” after being sued by the property of Isaac Hayes, rings so hole: “[T]he marketing campaign has no real interest in annoying or hurting anybody. And if the Hayes household feels it hurts or annoys them, that’s wonderful, we’re not going to drive the difficulty.”
If that had been true, the marketing campaign wouldn’t have litigated in opposition to Grant for 4 years. If that had been true, the marketing campaign wouldn’t have used “Maintain On, I’m Coming” 134 instances after being requested to cease. Except one in every of these lawsuits manages to take a very vital monetary chew out of Trump, the one method it will ever cease is that if Trump stops operating.
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