Using Music in Political Campaigns: Misuse, Copyright Infringement, & Litigation

Episode Notes

Transcript

Joseph Fishman:

Every four years. I mean, it’s accelerated under Trump, but it goes back a long way and every presidential election cycle, it’s a new series of songwriters that are objecting to what was played at some campaign rally, and then we just do it all over again four years later.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I have three books out titled How To Get Sued the Sled and my newest book. How would You Decide 10 Famous Trials That Changed History? You can find all three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. Over the years, the power of music has been an integral piece in energizing a crowd, whether through a specific song used at a political rally or in a campaign video on social media. God bless the USA by Lee Greenwood. He’s used by former President Reagan. Don’t Stop Believing by Fleetwood Mac was used by former President Bill Clinton, and there are just a couple of examples of memorable songs used to boost political candidates.

However, there are legalities when it comes to the use of songs, especially when the musician doesn’t want to be tied to a political candidate or a candidate uses a song without that musician’s permission. Back on August 29th, 2024, deputy Director of Communications for the Trump campaign, Margot Mc Martin posted a short clip on X of Donald Trump boarding a plane set to the opening rift of a widely popular song seven Nation Army by the band The White Stripes. In response to that post guitarist and lead singer of the Rock Duo Jack White wrote on his Instagram page, oh, don’t even think about using my Music You Fascists lawsuit coming from my lawyers about this. To add to your 5,000 others on September 9th, Jack and his band mate Meg White, filed a copyright infringement lawsuit against Trump Company for the flagrant misappropriation of their song as they vehemently opposed the policies adopted and actions taken by defendant Trump when he was president and those he has proposed.

The clip has since been deleted. Well, today on Lawyer 2 Lawyer, we’re going to discuss the white Stripes recent lawsuit against Donald Trump for the unauthorized use of their Song seven Nation Army. We’ll talk about copyright infringement and the legalities for the use of songs and campaigns, and to help us better understand today’s topic, we’re joined by guest Joseph Fishman. He is professor of law at Vanderbilt University School of Law and professor at the Blair School of Music. Professor Fishman’s Research focuses on intellectual property, particularly as it affects the music industry. His recent scholarship has covered such legal issues as infringing similarity between songs, the role of expert witnesses in music, copyright litigation, judges’, definition of music, originality and trademark issues related to sound recordings. He’s currently writing a book on how law affects the livelihoods of professional songwriters. Welcome to the show, Joe.

Joseph Fishman:

I’m so happy to be here. Thank you.

J. Craig Williams:

Well, Joe, what a combination to have a law degree and also be teaching in a school of music. Tell us about that.

Joseph Fishman:

Yeah, well, so I’ve been teaching at Vanderbilt Law School for coming up on 10 years, and I just recently also joined the Blair School of Music, which is the music school at Vanderbilt. And I’ve, from the get go, been interested in how law affects the lives and the livelihoods of people working in the music industry. So being in Nashville Music City USA, it’s a perfect combination for me and I have a lot of fun with it.

J. Craig Williams:

Do you play an instrument?

Joseph Fishman:

I used to. I grew up playing piano and I never really had the chops to be a genuine pianist, but I was interested in musical composition and that led me to music theory and music history and then that led me to law school of all things, but I try and play the piano where I can.

J. Craig Williams:

How fun. Well, let’s jump into hit and talk about the use of music in political campaigns. It’s quite an intersection of copyright law and the use of music.

Joseph Fishman:

Yeah, absolutely. So copyright law is often the primary issue that campaigns need to worry about when they are considering using music in different campaign activities. It’s not the only issue, but often what we’re talking about here is copyright law.

J. Craig Williams:

Let’s say that I’m one of a political consultant for Campaign, even a local one, and I want to have some music used in the commercial that I’m preparing for my candidate. How do I go about getting permission?

Joseph Fishman:

Yeah, so the permission, the licensing process really depends on how you want to use it. So for putting it in a commercial or a campaign video like you asked about, that’s going to be a different licensing process than if you want to play it in front of a live crowd at a rally. For music copyright, the first thing you need to keep track of is that you need to get permission both for the musical composition and for the sound recording of that composition. So if you’re a listener, it just feels like one track, but it encompasses two separate copyrights and they’re often controlled by separate people, and you need to make sure you have the rights to both of them. For the composition, you’re probably dealing with songwriters and publishers, and for the recording you’re probably dealing with artists and labels. So for putting it in a commercial, that’s what is called a sync license in the trade short for synchronization, and the process for getting permission is easy for me to summarize, but it can be a pain to do in real life. You need to ask for a license from the copyright owner of the composition, and they either give it to you or they don’t, and you need to ask for a license from the copyright owner of the sound recording and they either give it to you or they don’t. And if you don’t have both licenses, you don’t have the permissions that you need for that. Commercial

J. Craig Williams:

And licenses can be restrictive. I mean, they can say you can use it only so many times. You can only use it here. But tell us about the restrictions you see in licenses.

Joseph Fishman:

Yeah, I mean, so it’s just like a license that you might encounter in the brick and mortar world, right? If I invite you onto my property to join me for lunch or to use a trampoline in my backyard, that doesn’t mean that you then get to move in and stay however long you would like and do whatever you want while you’re on that property. So it’s the same thing in the IP world. So a license could be limited in length, it could be limited for particular types of videos. The artist could request the right to approve the exact content that their music is going to be associated with. They have the final say there. If we’re talking about music at a campaign rally, that needs a bit more unpacking because the creatives, the artists have a lot less control, so we don’t even need to worry.

If you are the campaign, you don’t even need to worry about the sound recording because US Law does not grant the copyright owner an exclusive right over live performance of a sound recording. It’s a strange quirk that makes the US an outlier in pretty much the entire world. The only thing you need to get permission for is the composition, and typically the campaign itself will have paid what’s called a performing rights organization like ASCAP or BMI for a blanket license that covers a gigantic catalog of all the music that they could want so that any song the campaign would choose would be covered by that blanket license. These are organizations that grant licenses to just about any kind of venue you could think of that wants to play music publicly, hotels, university campuses, YMCAs, you name it, and they grant them to political campaigns too.

But beginning about, I would say maybe 10, 12 years ago, the performing rights organizations added a catch. So every other type of licensee gets the entire catalog full, but if you’re a campaign wanting to use the songs at a live political event, you get a license with a string attached. A songwriter can remove a particular song from the license if they object to its use by a particular candidate. And if that happens, the terms of the license say you’re out of luck, you can’t play that song. You could play whatever else is in the blanket license, but you can’t play that song. So that’s an example of songwriters trying to exert a little bit more control than they historically have had over how their music is used at rallies and other live events.

J. Craig Williams:

Neil Young has done that.

Joseph Fishman:

Yes, he has.

J. Craig Williams:

And there are a number of other songwriters that have done that

Joseph Fishman:

More than I can count, and every four years. I mean, it’s accelerated under Trump, but it goes back a long way and every presidential election cycle, it’s a new series of songwriters that are objecting to what was played at some campaign rally, and then we just do it all over again four years later.

J. Craig Williams:

And music has a long history of use in political campaigns, doesn’t it?

Joseph Fishman:

Certainly does. Absolutely.

J. Craig Williams:

And it goes back to some of the very early campaigns that were done just as that people stumped across the country on the backs of railroad cars when they had bands show up and stir up the populace.

Joseph Fishman:

Yeah, I mean, we were talking earlier about how I used to study music. I mean, before I went to law school, I studied music in the Soviet Union of all things. And look, music can be used in all sorts of political ways for all sorts of political purposes, and it always will. And so I think none of us should be surprised when you see particular artists or songwriters jumping up and saying that they don’t want to be associated with particular political causes.

J. Craig Williams:

So what happens when a candidate does not get permission? Does the songwriter or now in this case, can in live rallies, does the artist get to send a, what is it called, a cease and desist letter?

Joseph Fishman:

Yeah. What usually happens is either the artist or the songwriter, it might be the same person for a given song, but not necessarily whoever it is that’s objecting to it will make some kind of big public stink about it. They will either get a lawyer to issue a cease and desist, or they will post something on Instagram or other social media channels. They will try and appeal to the court of public opinion, but they will get the word out there, I did not give you permission to do this and you should stop. And often that’s enough. Often these sorts of disputes do not make it all the way to formal litigation or end up in court, but sometimes either because the candidate does not want to stop or because you’re dealing with a particular artist that really wants to make a point about it, you will see a lawsuit filed, and if that happens, they could sue for damages. The use of the song could be enjoined. It’s not clear that the damages would ever be especially high, but the litigation could drag on for a while and it could generate negative headlines and could become a distraction. Usually we see candidates when they’re told to stop, they just kind of move on and find some other music to play.

J. Craig Williams:

Well, Joe, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer 2 Lawyer. I’m joined by Joe Fishman, professor of Law at Vanderbilt University School of Law and professor at the Blair School of Music. We’ve been talking about the use of music and political campaigns and lawsuits, and in fact, we have a lawsuit right now, one of my favorite artists, at least as his state, is suing former President Trump over the use of some of his music in rallies. Isaac Hayes

Joseph Fishman:

Trump is a defendant in so many lawsuits right now. I actually wasn’t sure how we were going to end that sentence, but yes, Isaac Hayes is one of several plaintiffs who is currently going the litigation routes against Donald Trump.

J. Craig Williams:

Well, he’s one of my favorites just from my generation. But then there’s also the White Stripes seven Nation Army.

Joseph Fishman:

Yes. So there’s Isaac K’s, the White Stripes and Eddie Grant of Electric Avenue Fame. If that rings a bell, he is still embroiled in litigation with former President Trump over usage from the 2020 campaign. So all of these are going on simultaneously in Isaac Hayes’s case, he just won, and I mean maybe 48 hours before we’re doing this recording, he just won an injunction against Trump to stop using his song in campaign rallies.

J. Craig Williams:

Hold on, I’m coming. I think who is the one that was written by Isaac Hayes? There’s also an ABBA song as well out there.

Joseph Fishman:

Yeah, so ABBA has objected, I believe, through Universal Music Group. I’m less sure about what the legal grounds of that objection are. There’s less detail, as far as I’m aware, there hasn’t been a lawsuit that has been filed there. And the objection with ABBA may have more to do with Abba’s brand than with copyright infringement, but we’ll see if something ends up developing there.

J. Craig Williams:

And the goal really in this kind of litigation is just an injunction because as you said, the damages are not going to be high.

Joseph Fishman:

Yeah, the White Stripes, that other case that you mentioned, they’re asking for damages. They want to see if any profits are attributable to this 22nd video that the Trump campaign posted. I can’t imagine there’s going to be much that’s actually there, so they’re asking for it, but yes, you’re right. Usually what they’re after is an injunction and maybe an apology.

J. Craig Williams:

Right. Or perhaps some publicity. I had never heard of The White Stripes before this situation arose, probably because I’m a little bit older. Well, let’s talk about fair use and sampling. How does that play into this situation?

Joseph Fishman:

It is not clear. That’s a great question. So fair use is a defense to any copyright infringement claim and the Copyright Act, the federal statute, gives four factors for courts to consider, which really briefly, the nature of the use, the type of the work that was copied, how much of the work was copied, and what the effect is on the market for the work. The Trump campaign is arguing fair use in that Eddie Grant case that I mentioned about Electric Avenue. The theory is that the nature of the use is really transformative because they have recontextualize the song into a political message. And as a pop song, it was not originally meant to be used in a political message. I expect that that’s going to be a pretty weak claim. I don’t expect it to go very far, but we’ll see. The fair use is almost never asserted in other music cases, interestingly enough, if it’s your song sounds too similar to my song sort of case, you almost never see fair use. So we don’t have a whole particularly large body of music fair use case law to go on.

J. Craig Williams:

Fair use doesn’t have a play in this. Why do you think it doesn’t used as a defense more often?

Joseph Fishman:

Really good question. I mean, I think it’s my speculation here, but I think in the average music copyright case, the claim is about excessive similarity. And usually the defendant doesn’t even want to acknowledge that they had copied the song at all. And so just the optics of it push in favor of saying, I don’t know you. I’ve never heard you, or I’ve never heard of you, and then arguing in the alternative, but if I did and I did copy you, then it was fair use. I think people are hesitant to make that sort of defense. So you just don’t see it very often. Obviously here where everybody knows the song that’s being used, and it’s very clear that copying did occur. There’s no plausible defense that we didn’t have copying. So it’s really, you find a way to say that there’s a license or fair use. Those are the two defenses that you can plausibly assert here. So as Trump, I think in particular actually litigates these cases, maybe we’ll see some fair use case law about music that we haven’t seen before.

J. Craig Williams:

He seems to assert every possible defense.

Joseph Fishman:

You know what? In a lot of ways it’s worked for him in other contexts. So why not here?

J. Craig Williams:

Well, let’s talk about responsibility mean we have, first we have the candidate, the political campaign itself. We’ve got the venue where the situation is being held, and to some degree, and I’m not sure if they’re either roadies with the campaign or an independent sound engineer who sets up the board and plays the music, who’s responsible to get permission.

Joseph Fishman:

So these days, it’s really the campaign that has that responsibility. I think in earlier eras, the venue would’ve played a larger role if we’re talking about live performance. But as the performing rights organizations have shifted to these political entity licenses, they specifically carve out whatever license the venue has already isn’t going to count for holding your campaign rally. And that shifts the burden onto the campaign to get their own separate license. So in the first instance, it’s really the campaign that needs to make sure that they’ve got the clearances they need.

J. Craig Williams:

Yeah, there was an older case, Brown v. McCain, John McCain, now deceased former senator where Jackson Brown brought claims for the use of running on empty, I think it was copyright infringement, false association or endorsement. Let’s talk about the latter part of it. The false association or endorsement. What kind of traction does that get?

Joseph Fishman:

Yes, and I’m glad you brought that case up because it shows that these are not entirely new issues, even though we just hear about them more often these days. So alongside copyright, which is what we’ve been talking about so far, an artist can also assert that the use of their music in a particular political is creating some sort of false association between themselves and the campaign may cause listeners to perceive an endorsement that doesn’t really exist, and it may also be violating their right of publicity. So in that case that you mentioned involving John McCain and the Republican National Committee from his 2008 presidential campaign, Jackson Brown asserted all of these things, and the court thought that P was right, that people hearing this song in a campaign commercial were going to be misled into thinking that this singer supports this candidate even though he doesn’t. And after a preliminary loss, the McCain campaign ended up settling on confidential terms and ended up issuing a big public apology, which is probably what Brown really wanted.

J. Craig Williams:

Right. Well, Joe, right now it’s time for another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Joe Fishman, professor of law at Vanderbilt University School of Law and professor at the Blair School of Music. While I don’t mean to whipsaw you here from generation to generation, we’ve just been talking about Jackson Brown, but we’ve got a current situation going on with Taylor Swift. Not that she’s done anything yet with respect to the ai, but how does the image of her endorsing Trump now plague with her statement that she doesn’t

Joseph Fishman:

At this point, I rather doubt that she would actually bring a legal claim against Trump, but if she wanted to, she could. We were a moment ago talking about false endorsement. That’s really what is that issue in Trump’s posting of what is apparently an AI generated fake image of swift endorsing Trump for president. And the cases up until this point, like the Jackson Brown one, have dealt with, I would say, more subtle claims of false endorsement. Using my music in a particular context is going to make my fans think that I’m endorsing you. In Taylor Swift’s case, I mean, you literally had the candidate posting that person’s face and saying, this person endorses me, and I accept. There’s nothing subtle about that. I think there are multiple laws that she could, if she wanted to invoke federal false endorsement laws, state right of publicity laws that the Trump campaign would have violated there. Taylor Swift of all people in the world just happens to have so much of so large a global platform that if all she’s interested in is setting the record straight, she can pretty much do that on her own,

J. Craig Williams:

More powerful than an injunction.

Joseph Fishman:

Yeah, I

J. Craig Williams:

Agree. Speeding Bullet. Well, let’s talk about the other side of this. Now, Kamala Harris’s campaign was able to use a similar branding as Charlie Xc X’s album, brat album on her social media accounts. She used the same lime green color that Charlie used, Charlie XC X used. Is that a problem?

Joseph Fishman:

So my understanding is that she got permission for that. I don’t know the specifics, but it certainly seemed based on Charlie Xc X’s own social media content that they were on the same page.

J. Craig Williams:

Can you copyright a color?

Joseph Fishman:

No, you cannot copyright a color. It would not be a copyright issue. But I think you’d end up in a similar, if she hadn’t gotten permission, and if Charli XCX did not like that usage, she could have made a case about what would appear to Charli XCX’s fans as being some kind of false endorsement or false association

J. Craig Williams:

Similar to the Taylor Swift AI situation.

Joseph Fishman:

Yeah, I mean, I think the Taylor Swift AI situation is always going to be, when I think of hypotheticals for what could a candidate do? I mean posting a picture of a person’s face and saying, this is an endorsement. You’re never going to have anything more extreme than that. Although never say never. I suppose the color usage is a little more nuanced, but I think there would’ve been some understanding of association there that if the candidate didn’t want there to be, excuse me, if the artist didn’t want there to be an association that the artist could have objected to

J. Craig Williams:

Just because the color has become so associated with her.

Joseph Fishman:

Yeah, I mean, in the trademark world, you can get a trademark on a color, right? Tiffany’s is probably the easiest example. Or T-Mobile pink in Charli XCX’s case, I mean, short of a formal trademark. I mean, I think it’s clear. In the summer of 2024, she and her team did an amazing job of getting the public to associate that particular brat green with her, and probably would’ve thought of it if they saw the Kamala Harris campaign using it. It was a good idea for all of them to have been on the same page and for whatever permissions to have been lined up before the usage. And I think that’s what they did,

J. Craig Williams:

And frankly, good publicity for both of them.

Joseph Fishman:

Absolutely.

J. Craig Williams:

Right. Well, Joe, you’re currently writing a book on how law affects the livelihoods of professional songwriters. Tell us what you’re doing.

Joseph Fishman:

Yeah, thanks for asking. So the book is called, that’s my song. I live in Nashville. I am surrounded by these musical superheroes that are basically disguised as Clark Kent because even though they have written a gazillion number one hits, you probably would never recognize them. And my job as a professor is to study the law that affects the music industry, including songwriters. But I am a big believer that if you want to know what’s really going on in people’s lives, you need to ask them. So I spent a couple years asking them. I interviewed songwriters about their working lives, how songs get made, and also how they get paid. And I am currently writing a book that is intended for a general audience. Think of it like a nature documentary with songwriters as the subject. And I think anybody who likes music should be interested in it. But for lawyers, since we’re here talking about law in particular, it’s eyeopening how tightly regulated songwriters revenue streams are. The federal government sets the royalty rates for most of the ways that songwriters get paid. And we’ve ended up in a really strange place where Nashville songwriters make their money not so much from streaming, but from FM radio, and that ends up affecting not only how sustainable their careers are, but even what kind of music they decide to make. So it’s been fascinating for me to learn about and I’m enjoying telling their story.

J. Craig Williams:

Why is the government involved?

Joseph Fishman:

Oh, there’s a lot of history there. Those performance rights organizations like ASCAP and BMI that we were talking about earlier, since the 1940s, those have been regulated by consent decrees with the Department of Justice for antitrust issues. And so if a licensee does not like the rates that the performing rights organization is trying to charge, they go to what’s called Rate Court, which is basically just a Courtroom in the southern district of New York, and a federal judge decides what the rate is going to be. I mean, antitrust issues are interlaced through all of this.

J. Craig Williams:

That sounds like a very fun job to have as a judge.

Joseph Fishman:

Yeah, I mean,

J. Craig Williams:

Especially if you like music.

Joseph Fishman:

Yeah, I think the trials are really more economics than the fun music stuff, but if you care about the industry, then you absolutely need to care about those proceedings.

J. Craig Williams:

Well, Joe, it looks like we’ve just about reached the end of our program. It’s time to ask you for your final thoughts, wrap up and get your contact information so our listeners can engage with

Joseph Fishman:

You. Yeah, so what’s at the heart of everything we’ve been talking about is just getting people’s consent, getting their permission. I mean, sometimes there is a genuine legal claim that could be brought, and sometimes there’s not. Maybe the person who’s objecting doesn’t actually own the rights that they’re trying to assert, but there’s so much music out there and campaigns should do the right thing and just make sure that they have the permission that they’re supposed to have so that they can avoid these kinds of distractions in the news cycle. So that can do right by the artists who they’re relying on. If anybody is interested in what else I’m working on, I do use the, what shall we call it, the artist formerly known as Twitter. I tweet under the handle JP Fishman. So you can find the rest of my thoughts there. And you can also find my faculty website at the Vanderbilt Law School webpage. The URL is probably too clunky for me to share with your listeners, but if you just go to the faculty directory at the Vanderbilt Law School website, you’ll find me.

J. Craig Williams:

Great. Well, Joe, it’s been a pleasure having you on the show. Thanks very much today.

Joseph Fishman:

Thank you for having me.

J. Craig Williams:

Here are a few of my thoughts about today’s topic. As some of you may know, I’m sometime copyright lawyer having worked on the issue of contributory copyright infringement. But music is a whole different animal as Professor Fishman identified, and that animal requires permission. When you don’t get it, there are consequences. And I think in Taylor Swift’s case, those consequences came swiftly and emphatically when her endorsement of Kamala Harris appeared. But other musicians don’t command the kind of presence that Taylor Swift does, but they have had an equivalent kind of an impact. Professor Fishman’s discussion of Jackson Brown’s attack against John McCain. It’s been going on for a long time and it will continue to go along. So nothing new on that front, but white, an intricate situation to be aware of. Well, that’s it for Craig’s Ran on today’s topic. Let me know what you think. If you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at the legal talk network.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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