Can Neil Young Sue Donald Trump Into Silence?
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Can Neil Young successfully sue Donald Trump over the usage of his music at rallies? As with so many recent controversies in music, it all comes down to a tricky copyright issue.
Young filed a lawsuit against Trump’s campaign Tuesday, claiming that the president and his campaign team lack the proper rights to play his songs “Rockin’ in the Free World” and “Devil’s Sidewalk” at rallies and demanding statutory damages from the politician for willful copyright infringement.
The lawsuit is just the latest in a long line of clashes between Young and Trump — dating back to June 2015, when Trump played “Rockin’ in the Free World” after announcing his presidential run. Trump most recently played the Freedom cut at events in Tulsa, Oklahoma and Mount Rushmore, despite Young’s longstanding objection.
But does the musician have a case? “It’s absolutely a license issue,” Gary Adelman — a New York-based entertainment business attorney at Adelman Matz — tells Rolling Stone. He notes that the case will hinge on whether the artist has specifically removed those particular songs from his public performance organization’s blanket licenses: “If he has withdrawn those two particular songs from [BMI or ASCAP’s] political license program, then the Trump administration does not have a license to play them at a political rally and they have a good case that they will more likely win.”
Young’s complaint alleges that Trump’s campaign “does not now have, and did not at the time of the Tulsa rally, have a license or Plaintiff’s permission to play the two Songs at any public political event,” but it does not specify its licensing status with BMI or ASCAP, the performance rights organizations that manage usage rights of Young’s various tracks. A source close to the matter says Young’s catalog management is divided between the two groups and certain songs have been withdrawn via the political exclusion in the past. Young did not immediately responded to Rolling Stone‘s request for comment. (Update, August 5th: A rep for ASCAP confirms that “Rockin’ in the Free World” and “Devil’s Sidewalk” are under ASCAP’s domain and that Young has requested they be excluded from political campaign licenses.)
Adelman notes that there’s potentially a secondary infringement issue if the campaign is using songs for broadcasts. “Trump is not just doing events for the 20,000 people there — he’s doing it for TV and for his website,” he says. “The Trump administration will probably argue that campaigns are ephemeral use, but it’s not ephemeral use if the campaign events are set up to be broadcast.”
If you’re feeling dèjà vu, it’s warranted: Neil has been threatening legal action against Trump’s camp for using his music for years now, and artists including R.E.M., Brendon Urie of Panic! at the Disco, Axl Rose of Guns N’ Roses, Elton John, Adele and the Rolling Stones have either issued public statements or sent cease-and-desist letters to Trump asking for their songs to stop being played at his campaign events.
After Trump used Rihanna’s “Don’t Stop the Music” at a rally in Tennessee in 2018, the singer tweeted that not “me nor my people would ever be at or around one of those tragic rallies.” (She also sent a cease-and-desist.) Artists have the option of asking their performance rights organization — which is typically BMI or its peer ASCAP — to put specific songs under a political exclusion so that their music cannot be obtained through a broad license, as the Rolling Stones did.
But rarely have artists gone to court. R.E.M. has been threatening legal action against Trump since January but has not filed any formal complaints, for instance. “A lot of this is to sway public opinion,” Adelman notes. “In our very two-sided political place right now, bands are actually signaling to their own fans.”
There’s also the cost to consider. “No campaign should use an artist’s song without permission because it undeniably constitutes at least an implied endorsement of the candidate by the artist — but it will be hugely expensive for Neil to spar in court with the deep-pocketed Trump campaign,” says Lawrence Iser, a copyright attorney at the firm Kinsella Weitzman Iser Kump & Aldisert.
Defendants have 21 days to respond from the suit’s file date. Court decisions on cases like these usually take nine to 12 months, attorneys say, meaning that an outcome on Young vs. Trump will be due well after the November 2020 election.
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