Can Donald Trump use songs against a musician’s will?
WOODY GUTHRIE’S “machine” killed fascists—or so America’s great dust-bowl balladeer wrote on his acoustic guitar. Jack White’s electric machine “sues fascists”, wrote the frontman of The White Stripes on Instagram on September 9th. The “fascist” is Donald Trump, who recently used the band’s most popular song, “Seven Nation Army”, in a campaign video. Mr White wants him to stop. He joins a long list of artists who object to Mr Trump using their music: Abba, Celine Dion, Beyoncé, Foo Fighters, the estates of Isaac Hayes and Sinéad O’Connor and Johnny Marr of The Smiths—and those are just the objectors from this year. (We’ve put together a playlist of Trump-appropriated songs.) Can they turn the music off?
Mr Trump is not the first American politician to snaffle a soundtrack. In 1988 Bobby McFerrin objected to George H.W. Bush using “Don’t Worry Be Happy”. Bush switched to Guthrie’s “This Land is Your Land” (presumably omitting the lines “There was a big, high wall there that tried to stop me/A sign was painted said ‘Private Property’”). Since then musicians have sought to wrest songs back from several Republican presidential candidates including Bob Dole and John McCain, but also from a Democratic one, Barack Obama.
The law is on the musicians’ side when candidates use their songs in television spots or online videos. Campaigns must license such music. Mr White is suing over a ten-second clip in which Mr Trump walks up the stairs to his plane as he leaves a campaign event. Even fan-made videos are subject to licensing requirements if campaigns repost them. In 2016 Hillary Clinton’s campaign chairman retweeted a video that used “Rebel Girl” by Bikini Kill, an influential riot-grrrl (feminist-punk) band. Tobi Vail, a founding member, had the video removed from YouTube.
Candidates have more leeway to blast songs at their rallies. Organisations such as Broadcast Music, Inc (BMI) and the American Society of Composers, Authors and Publishers (ASCAP), which handle rights for live events, can sell licences that allow politicians to use all of the millions of songs in their catalogues. But both ASCAP and BMI give songwriters the power to exclude their work from a licence.
The estate of Isaac Hayes is suing Mr Trump and his campaign for $3m for playing at rallies “Hold On, I’m Coming”, which he co-wrote. Fans may think that Hayes, who died in 2008, was a MAGA man, not a soul man, his estate complains. Mr Trump’s lawyers claim the family has not proved it owns the copyright. On September 3rd a judge in Atlanta blocked the Trump campaign from using the song until the case is resolved. ASCAP also suggests that an artist could still take legal action against a politician if an authorised use of the music damages the artist’s reputation or falsely implies an endorsement.
In practice, however, these spats rarely get to court. Artists stand to lose not only legal fees but sales to people who are fans of the offending politician. And a cease-and-desist letter is often enough to press the mute button. Lawsuits, when they happen, can take a long time. Eddy Grant’s lawyers told Mr Trump in 2020 to stop running an advertisement that used “Electric Avenue”. It took until September 13th this year for a court to rule in the singer’s favour and agree to award him damages.
Mr Trump has been tangling with songwriters ever since he rode down the golden escalator in Trump Tower in 2015, to the accompaniment of Neil Young’s “Rockin’ in the Free World”, to announce that he would run for president; Mr Young swiftly objected. The former president has in the years since found himself with ever less music to choose from. The list of stars who object is far longer than the roster of pro-Trump artists. Kanye West, Kid Rock and MIA are among his fans. Mr Trump could always turn to Lara, his daughter-in-law, who chairs the Republican National Committee. She recently released “Hero”, a single with heavily computer-enhanced vocals, which he could play to rally-goers—but they might not thank him for it. ■