More Artists Stop Trump From Using Their Music

When the White Stripes revealed their lawsuit against Donald Trump earlier this week, they joined a growing list of bands taking legal action against the former president for using their music without permission.

“This machine sues fascists,” Jack White, half of the disbanded duo, wrote in an Instagram caption, alongside a picture of a complaint filed in the U.S. District Court for the Southern District of New York. In the lawsuit, Jack and Meg White claim that the Republican presidential nominee violated federal copyright law by using their iconic track “Seven Nation Army” in a fundraising appeal shared on social media.

The group joins a who’s who of music legends who say Trump’s policies are discordant with the music they create — from Beyoncé and Celine Dion to the Foo Fighters and Swedish pop legend ABBA.

“As far as I know, that may be a record,” attorney Jacqueline Charlesworth said of the sheer volume of complaints against Trump’s music selections.

The lawsuits from musicians present a unique legal challenge, distinct from Donald Trump’s more prominent legal battles, such as the federal cases regarding his handling of classified documents and his involvement in the events of January 6, 2021. While those cases are probing the boundaries of presidential immunity, the legal actions brought by artists shed light on the intricate legal framework that politicians and their campaigns must adhere to when using music, especially concerning copyrighted material.

How some campaigns try to get around the copyrights

Charlesworth, an attorney at Frankfurt Kurnit Klein & Selz who specializes in music licensing, was involved in a notable music dispute in 2010. The case revolved around Republican Chuck DeVore, then a California state Assemblyman running for the U.S. Senate, and Don Henley of the Eagles. DeVore’s campaign had used Henley’s songs “The Boys of Summer” and “All She Wants to Do Is Dance” in political ads that were aimed at mocking then-President Barack Obama, sparking a legal conflict over the unauthorized use of Henley’s music.

In their defense, DeVore’s campaign argued that their use of the songs fell under the doctrine of fair use, which provides certain exceptions for the use of copyrighted material. However, this argument ultimately failed, as the court did not accept their claim, and the campaign was unable to prove that their use of the music was legally permissible under the fair use doctrine.

One of the exceptions under copyright law permits the use of an original song in a parody or as commentary on the original composition, which would qualify as a transformative use. However, in the Henley case, the judge ruled that the DeVore campaign had not sufficiently transformed the work to fall under this exception, and thus their use of the songs did not meet the criteria for fair use.

“Look, this is not a transformative use. You’re just using the music to promote your campaign,” Charlesworth recalled of the decision.

“A songwriter or an artist should have the ability and right to — as they do under copyright law — control the use of their work, especially in a political context,” Charlesworth said.

Hurdles for the artists

While Henley won his case, success in copyright disputes is far from certain for most musicians. The complexities of copyright law make it difficult for many artists to take legal action, even if they strongly oppose the use of their music without consent. Pursuing a court-ordered remedy can be both expensive and time-consuming. Larry Iser, an attorney at the law firm KHIKS, has represented numerous musicians in legal battles with politicians over the unauthorized use of their songs, highlighting the challenging nature of these cases.

“The notion of political candidates attempting to associate themselves with the fans of iconic musical artists is nothing new. What’s new this time around with Trump is, in the past, when artists have complained, pretty much, the political campaigns respected that and stopped using songs. But it got very bad with Trump,” Iser said.

For a campaign to use an artist’s song, it typically needs to use one of the two main organizations that grant licenses to publicly broadcast music: ASCAP and BMI.

Artists can opt out of having their music played by certain groups if they wish, Iser explained. But if a campaign refuses to drop the song at that point, it constitutes copyright infringement.

Attorneys for Trump have tried to beat back the suit by calling into question the estate’s ownership of the copyright and by also raising a fair use argument. The Trump campaign has not responded to a request for comment from NPR.

Nonetheless, U.S. District Judge Thomas Thrash in Atlanta this month issued a temporary injunction on the candidate, prohibiting him from using the song going forward. The judge in that suit drew precedent from a case that Iser brought to court in 2008 and Charlesworth’s 2010 suit, which successfully argued against campaigns using their clients’ music in promotional materials.

“The campaign has no interest in annoying or hurting anyone,” Ronald Coleman, an attorney for Trump, said to reporters of the judge’s ruling. “And if the Hayes family feels it hurts or annoys them, that’s fine — we’re not going to force the issue.”

Normally, Iser said, it wouldn’t go that far. “Here’s the reason you see so many artists going to social media to proclaim that the Trump campaign does not have the right to use their music,” Iser said. “And that’s because lawsuits are very, very expensive.”

“The extent of the lawsuit, which, by the way, is incurred on both sides, is typically enough to cause most campaigns to stop using the song when they’re approached by an aggrieved artist,” he said.

Originally found on NPR. Stay tuned to MusicOnTheRox.com for all your music news and reviews.