Donald Trump played two Neil Young songs at his recent rally in Tulsa, Oklahoma.(AP: Sue Ogrocki)
By music and pop culture reporter Paul Donoughue
You can’t always get what you want.
That’s true for the Rolling Stones who, despite numerous attempts, can’t seem to get Donald Trump to stop playing their famous song at his rallies.
But it’s not just the Stones.
Neil Young has objected to Trump’s use of his work:
If you wanted to book a festival that was solely disgruntled anti-Trumpers, you could take your pick of headliners.
Guns N’ Roses, Queen, Ozzy Osbourne, Adele, Pharrell Williams and many more have expressed their displeasure at the President’s use of their music for political ends.
Now, Young is taking Trump to court.
What do we know about his lawsuit?
Lawyers for Young filed a claim in US federal court in New York City overnight, accusing the President and his campaign of copyright infringement for using Young’s post-Soviet Bloc anthem Rockin’ In The Free World at public events, including a rally in Tulsa, Oklahoma in June.
The claim says the Trump campaign played both Rockin’ In The Free World and Devil’s Sidewalk at the Tulsa rally.
It says the campaign “does not now have, and did not at the time of the Tulsa rally, have a licence or [Young]’s permission to play the two songs at any public political event”.
But this is where it gets a little complicated…
There are organisations that grant music licences to all kinds of businesses and organisations in the US, including political campaigns. They collect money for that use and pass it to the artists.
It’s the same thing music rights group APRA AMCOS does for businesses in Australia, and it lets the campaigns legally broadcast millions of different songs in public.
The filing claims the campaign as far back as 2015 “has wilfully ignored [Young] telling it to not play the songs and has wilfully proceeded to play the songs despite its lack of a licence”.
Except Young acknowledged back in 2016, a year after Trump’s use of the song at his campaign launch, that the campaign did indeed have the licence to play the song.
So, it seems from both sides that the Trump campaign did, at one point, have a licence to play Young’s song.
If they still had one in 2020, it’s not clear how they could be hit with a claim of copyright infringement. We’ll have to wait for the lawsuit to progress to find out more.
When the Rolling Stones threatened Trump’s campaign with legal action in June, it also talked about licensing issues.
But these kinds of strategies — copyright claims based around licensing — haven’t seen much success in the past, music industry lawyer Dina LaPolt told Pitchfork recently.
Remember, the Stones have been arguing this point for years, and this issue goes as far back as 1984, when Bruce Springsteen objected to Ronald Reagan using Born In The USA.
So, what other options are there?
In Australia, artists have some protection through APRA’s licensing agreements, just like they do in the US, but artists here also have something called moral rights.
Infringing on those moral rights is “the doing of something that results in distortion, mutilation or alteration of a work that’s somehow prejudicial to the creator’s honour or reputation,” Kimberlee Weatherall, a professor of law at the University of Sydney, told the ABC back in 2018.
Essentially: my music being associated with you is bad for me.
We saw some musicians flex their moral rights a few years ago when former federal MP Cory Bernardi made a Spotify playlist and some of the artists included weren’t thrilled about it.
But the United States does not have clear moral rights protections, according to Shaun Creighton and Sharon Gerussi-Lock of Australian law firm Moulis Legal.
Still, there’s a reason why these artists won’t back down
In some US states there is a different thing called the right to publicity.
That means a person has an exclusive right to benefit from the use of their likeness or reputation — and conversely, can seek to protect that reputation from harm when someone else tries to use it without authorisation.
This issue has popped up in music most memorably with respect to dead musicians being revived as holograms.
In the US, there is also something called the Lanham Act, a federal law, part of which protects against “false endorsement”.
As the American Society of Composers, Authors and Publishers (ASCAP) warns political campaigns:
This might be a more reliable way to stop Trump using your songs even when his camp purchased the appropriate licence, according to Ms LaPolt. It worked for both Aerosmith and Rihanna in recent years.
But even this presents problems.
“A performer will often issue a statement immediately denouncing any possible endorsement, as was the case with the statement issued by Tom Petty’s family,” Mr Creighton and Ms Gerussi-Lock wrote in a recent article.
“This in turn would make it more difficult to establish that there was a false endorsement, since the relevant public would become aware that use of the song was unauthorised [and not an endorsement].”
This is all quite convoluted, right?
Hence why artists keep complaining, and Trump just keeps playing the songs — now over two consecutive campaigns.
Often, these kinds of disputes play out in public, through tweets and press statements. Some appear to go nowhere, while others are settled privately.
The act of filing a lawsuit might be as much, if not more, about shaming the campaign into stopping as it is about actually winning damages. (Young is only seeking a maximum of $US150,000 per infringement.)
While conventions and rallies might be a little different this US election, you can expect this Trump vs musicians battle to continue.