Can Neil Young Block Trump From Using His Songs? It’s Complicated

On Election Day in 2018, Neil Young posted a frustrated statement about President Trump.

Three years earlier, Mr. Trump had used Mr. Young’s song “Rockin’ in the Free World” — a protest against injustice — when announcing his campaign, drawing Mr. Young’s ire. With the divisive midterms underway, Mr. Young once again complained, yet said he had no legal recourse to stop Mr. Trump from using his music.

“Legally, he has the right to,” Mr. Young wrote on his website, “however it goes against my wishes.”

Last week, Mr. Young finally sued Mr. Trump’s campaign over the use of “Rockin’ in the Free World” and another song, “Devil’s Sidewalk,” both of which were played at Mr. Trump’s rally in Tulsa, Okla., in June. In his suit, the musician accused the campaign of copyright infringement for playing the tracks without a license, and asked for the campaign to be ordered to stop using them, as well as for statutory damages.

Mr. Young’s complaint said he “in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate.”

What changed in the intervening years, intellectual property experts say, is a new strategy by musicians to stop political candidates from using their songs without permission, though the legality of their approach is uncertain.

For years, musicians and songwriters have balked when politicians play their songs at public events, like campaign rallies. A politician’s embrace of their work can imply an endorsement, they say, or distort a song’s meaning — as when Ronald Reagan praised Bruce Springsteen in a speech in 1984, after a conservative columnist’s misinterpretation of the bleak “Born in the U.S.A.”

In the Trump era, this conflict has only grown more intense, as the president has drawn condemnations from a huge range of acts for using their music — like Rihanna, Elton John, Pharrell Williams, Axl Rose, Adele, R.E.M., the estates of Tom Petty and Prince — though Mr. Trump has often responded to their complaints with defiance.

“I think he is just extending a big middle finger to musical artists to say, ‘You can’t stop me,’” said Lawrence Y. Iser, a lawyer who has handled several prominent lawsuits over political campaigns’ use of copyrighted songs, including one filed in 2010 by David Byrne against Charlie Crist, then the governor of Florida.

Yet artists have often had little power to block political use of their songs. Most campaigns have the same kind of legal cover to play songs that radio stations or concert halls do — through blanket licensing deals from entities like ASCAP and BMI, which clear the public performance rights for millions of songs in exchange for a fee. ASCAP and BMI even offer special licenses to political campaigns, letting them use songs wherever they go.

For artists like Mr. Young and the Rolling Stones — whose 1969 song “You Can’t Always Get What You Want” has been the closing theme for countless Trump rallies — their involvement in those deals meant they could not take legal action.

But in June, the Stones said they would sue if Mr. Trump used their music again, and both ASCAP and BMI said that at the band’s request they had removed its songs from the list of works offered to political campaigns. (The rules for using a song in a film or commercial are clearer: direct permission from a writer or their publisher is needed.)

ASCAP and a lawyer for Mr. Young both said that “Rockin’ in the Free World” and “Devil’s Sidewalk” had similarly been removed from ASCAP’s political license.

Yet it is not clear whether such withdrawals are allowed under ASCAP and BMI’s regulatory agreements with the federal government, which were instituted decades ago to prevent anticompetitive conduct.

Known as performing rights organizations, ASCAP and BMI act as clearinghouses for the legal permissions that any radio station, digital music service or shopping mall needs to play copyrighted songs. The organizations’ agreements with the Justice Department, known as consent decrees, set out strict rules meant to preserve a fair marketplace, like offering their catalogs of songs to any “similarly situated” party that wants to use their music.

“Artists are faced with an uphill legal battle for asserting their rights to prevent politicians with whom they disagree from performing their sings,” said Christopher J. Buccafusco, a professor at Cardozo Law School. “They may have some options to do so, via the withdrawal of the political license, but those have dubious validity.”

ASCAP and BMI both believe their consent decrees allow the writers and publishers they represent to withdraw material under certain conditions, including if a particular use could damage the economic value of a song’s copyright.

“BMI does not remove a song from the license in order to achieve higher rates or for any reason other than that the rightsholders believe the association of their song with a campaign is an implied endorsement and diminishes the value of that work,” said Stuart Rosen, BMI’s general counsel.

A spokeswoman for the Trump campaign did not respond to a request for comment.

Mr. Young’s case is being closely watched as a test of artists’ power to protect their work against political use.

Last month, an advocacy group, the Artists’ Rights Alliance, released a public letter demanding that campaigns seek the consent of artists, songwriters and copyright owners before using their songs in a campaign. The letter was signed by Mick Jagger and Keith Richards, John Mellencamp, Lionel Richie, Sheryl Crow and dozens of others.

Some artists, like Steven Tyler, have had success sending cease-and-desist letters that cite trademark and publicity rights, though those claims are untested as well. And though Mr. Trump has stopped using some songs, like Aersomith’s “Dream On,” he often still asserts rights to use them.

Mr. Young’s case also comes as the Justice Department is reviewing ASCAP and BMI’s consent decrees, which have been a potent battleground in the industry for years.

Although songwriters earn royalties from the performing rights organizations, they — and their publishers — have often argued that the regulations are outdated and put too many limits on how works are licensed. On the other side, broadcasters and digital services say the decrees are needed to preserve a fair marketplace, and point to instances in which the groups were found to have violated their decrees.

“The copyright system is flawed; it can’t protect creators,” said Dina LaPolt, a lawyer who represents Mr. Tyler and other songwriters. “Part of it is because of the consent decrees.”

With the pandemic shutting down most rallies and many convention events, it is possible that the issue will be moot for the remainder of the 2020 campaign. But it may just be a matter of time before the issue flares up again, and artists as well as lawyers are watching the moves by Mr. Young and the Stones for clues.

Professor Buccafusco, a specialist in intellectual property issues, said that the best avenue for artists’ complaints may be outside the law — and that a politician’s use of their song can serve as an opportunity for those artists to articulate their own positions clarify the messages in their work.

“Their best recourse is probably one that they have been using for many years,” he said, “which is to complain publicly and engage in shaming sessions, which very often have won.”

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