Musicians and songwriters don't tend to agree on much, but many of them want a former president Donald Trump to stop playing their music at his political rallies and campaign events. Whether they can is a four-year dilemma. The legal answer is yes, at least for songwriters: The two major US performing rights organizations (PROs), ASCAP and BMI, require political campaigns to purchase special licenses from which rights holders can derive specific works. (The other two, SESAC and GMR, do not issue blanket licenses to campaigns.) But campaigns don't always grant these requests.
The use of pop music in campaigns goes back at least a century: Franklin D. Roosevelt used “Happy Days Are Here Again” in his 1932 campaign and Louisiana Gov. Jimmy Davisalso a singer, used “You Are My Sunshine”, which he owned the copyright to but did not write. Over the past decade, however, as politics has become more polarized and pop culture has come to dominate US life, it has gone from a topic of casual interest to one that commands mainstream attention.
In most cases, the unauthorized use of music at a campaign event follows one kind of scenario: A candidate uses a song, and the musicians or writers ask their lawyers to send a cease-and-desist letter, in part because some campaigns will respect that. , but often because it's just a good way to express their disapproval in public. How much do I dislike Trump? Enough to write my lawyer a letter! Some musicians have these letters written, even though the public performance license for an event is only required for a composition, not a recording. Approval is required from musicians only if the use of music implies approval or includes video, which requires a separate sync license from a song's publisher.
Now some recent cases make this issue more complicated. In mid-August, the estate of Isaac Hayes filed a lawsuit against Trump and his campaign for regularly using “Hold On, I'm Coming” as “outro” music at campaign events. (The estate is suing for copyright infringement, as well as under the Lanham Act, which would cover an implied endorsement, and there will be an emergency hearing in the case on September 3.) Beyoncé has warned the Trump campaign about its use her song “Freedom,” which has become a theme for the vice president Kamala Harris. And the Foo Fighters objected to the Trump campaign's use of their song 'My Hero' as Robert F. Kennedy Jr. took the stage to support Trump. (They haven't sued.)
It seems like an accident of legal history that these three examples fall under the same law as playing a song during an hour-long wait for a candidate to take the stage. In the latter case, no involvement or endorsement is implied — the songs are simply used as background music. But these cases are different. The Hayes estate's lawsuit alleges that Trump has used “Hold On, I'm Comin” 134 times, often as “outro” music, which arguably makes it something of a theme. Beyoncé's “Freedom” has been credited to the Harris campaign, which uses it with permission. And Trump's campaign used the Foo Fighters song to soundtrack a certain moment, knowing it would spread widely on video, even though the campaign didn't have permission for it.
These songs haven't just been played in public – they've arguably been commissioned for a reason the writers don't agree with. “Hold On, I'm Comin” has been played at Trump events as often as it is on purpose. Beyoncé should have the right to identify with the candidate she wants to win. And the Foo Fighters song is featured in news coverage and online video, implying that Kennedy is some kind of Trump-supporting hero.
While we believe that the use of music is a copyright issue involving a public performance, there is more going on in all three of these cases. The current licensing system seems to work well for how campaigns use music in background events. But it would be nice if campaigns could agree with rights holders, or even among themselves, to get permission if a song is used in a way that identifies it with the candidate — and especially if it's used for a moment that will be widely shared on video. This doesn't necessarily follow legal logic, but it seems like common sense: If a campaign deliberately chooses a song like “My Hero” to soundtrack a moment that's essentially designed to be spread on video, it doesn't make sense to get a video license ; Who are we kidding?
Until that changes, creators will continue to oppose unauthorized use of their work — and they're starting to do so in more creative ways. The Foo Fighters said they would donate the royalties from Trump's use of “My Hero” to the Harris campaign. While the Hayes estate lawsuit continues, it might be noted that although “Hold On, I'm Comin'” is regularly played at rallies — it was rewritten as “Hold On! Edwin's Coming” for the Louisiana gubernatorial campaign Edwin Edwards — the song is named after which co-writer David Porter he told Hayes from the Stax Studios bathroom. If Trump isn't using the bathroom, maybe another song will work better.
Politicians who use licensed songs also have some bragging rights. Tim Walz can say that Neil Young allowed him to use “Rockin' in the Free Word” at the Democratic National Convention — an odd choice given the song's sarcastic lyrics, but still great from a music icon. Harris can say the real “Freedom” is hers — and with it the support of Beyoncé. And we can all wait to see who Taylor Swift will support.
