Neil Young tries new tactic to stop Trump using his music

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On Election Day in 2018, Neil Young posted a frustrated statement about President Donald Trump.

Three years earlier, Trump had used Young’s song “Rockin’ in the Free World” — a protest against injustice — when announcing his campaign, drawing Young’s ire. With the divisive midterms underway, Young once again complained, yet said he had no legal recourse to stop Trump from using his music.

“Legally, he has the right to,” Young wrote on his website, “however it goes against my wishes.”

Last week, Young finally sued Trump’s campaign over the use of “Rockin’ in the Free World” and another song, “Devil’s Sidewalk,” both of which were played at Trump’s rally in Tulsa, Oklahoma, in June. In his suit, the musician accused the campaign of copyright infringement for playing the tracks without a license, and asked for the campaign to be ordered to stop using them, as well as for statutory damages.

Young’s complaint said he “in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate.”

What changed in the intervening years, intellectual property experts say, is a new strategy by musicians to stop political candidates from using their songs without permission, though the legality of their approach is uncertain.

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In the Trump era, this conflict has only grown more intense, as the president has drawn condemnations from a huge range of acts for using their music — like Rihanna, Elton John, Pharrell Williams, Axl Rose, Adele, R.E.M., the estates of Tom Petty and Prince — though Trump has often responded to their complaints with defiance.

“I think he is just extending a big middle finger to musical artists to say, ‘You can’t stop me,’ ” said Lawrence Y. Iser, a lawyer who has handled several lawsuits over campaigns’ use of copyrighted songs, including one filed in 2010 by David Byrne against Charlie Crist, then the governor of Florida.

Yet artists have had little power to block political use of their songs. Most campaigns have the same legal cover to play songs that radio stations or concert halls do — through blanket licensing deals from entities like ASCAP and BMI, which clear the public performance rights for millions of songs in exchange for a fee. ASCAP and BMI even offer special licenses to campaigns, letting them use songs wherever they go.

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ASCAP and a lawyer for Young both said that “Rockin’ in the Free World” and “Devil’s Sidewalk” had similarly been removed from ASCAP’s political license.

Yet it is not clear whether such withdrawals are allowed under ASCAP and BMI’s regulatory agreements with the federal government, which were instituted decades ago to prevent anti-competitive conduct.

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“Artists are faced with an uphill legal battle for asserting their rights to prevent politicians with whom they disagree from performing their songs,” said Christopher J. Buccafusco, a professor at Cardozo Law School. “They may have some options to do so, via the withdrawal of the political license, but those have dubious validity.”

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Last month, an advocacy group, the Artists’ Rights Alliance, released a public letter demanding that campaigns seek the consent of artists, songwriters and copyright owners before using their songs in a campaign. The letter was signed by Mick Jagger and Keith Richards, John Mellencamp, Lionel Richie, Sheryl Crow and dozens of others.

Some artists, like Steven Tyler, have had success sending cease-and-desist letters that cite trademark and publicity rights, though those claims are untested as well. And though Trump has stopped using some songs, like Aerosmith’s “Dream On,” he often still asserts rights to use them.

Young’s case also comes as the Justice Department is reviewing ASCAP and BMI’s consent decrees, which have been a potent battleground in the industry for years.

Although songwriters earn royalties from the performing rights organizations, they — and their publishers — have often argued that the regulations are outdated and put too many limits on how works are licensed. On the other side, broadcasters and digital services say the decrees are needed to preserve a fair marketplace, and point to instances in which the groups were found to have violated their decrees.

“The copyright system is flawed; it can’t protect creators,” said Dina LaPolt, a lawyer who represents Tyler and other songwriters. “Part of it is because of the consent decrees.”

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Buccafusco, a specialist in intellectual property issues, said that the best avenue for artists’ complaints may be outside the law — and that a politician’s use of their song can serve as an opportunity for those artists to articulate their own positions and clarify the messages in their work.

“Their best recourse is probably one that they have been using for many years,” he said, “which is to complain publicly and engage in shaming sessions, which very often have won.”

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