Musicians are mostly known to be a liberal group, so it should come as no surprise that the likes of Beyonce, Foo Fighters, ABBA, and Celine Dion have all objected to the Trump Campaign’s use of their music.
When pursued in court, the musicians have been prevailing. For example, on September 3, 2024, an emergency injunction was issued in favor of Issac Hayes’ Estate over the Trump Campaign’s unauthorized use of “Hold On, I’m Coming” in 2020, which continued at rallies in 2024.
On September 9, 2024, The White Stripes filed a lawsuit against former President Donald Trump, the Trump Campaign, and the campaign’s deputy director of communications Margo Martin after Martin posted a short video to social media featuring “Seven Nation Army.” The video shows Trump boarding an aircraft to Michigan and Wisconsin using the “highly-distinctive and immediately recognizable introductory riff” from “Seven Nation Army,” allegedly without permission. The White Stripes claim the infringement is willful in part because The White Stripes publicly denounced prior unauthorized use of the song during Trump’s first presidential campaign in 2016.
Political campaigns do not get a free pass on copyright infringement just because music is used in a political campaign. See Browne v. McCain, 612 F. Supp. 2d 1118, 1121 (C.D. Cal. 2009). The use of music in a video requires a synchronization license (typically from one or more music publishers) and a master license (typically from a record company). These licenses are voluntary, meaning they can be denied for any reason, and the fees are at the discretion of the rightsholder. This contrasts with other types of licenses like a mechanical license (for audio-only uses of a song) that are compulsory, provided the user follows the rules and timely pays the statutory fees. A public performance of a song in a video posted on social media by a political campaign may not be covered by the platform’s agreements with the various public performance organizations (like ASCAP and BMI).
This case is different from the objections recently made by others. First, the use did not occur at a rally. Second, Jack White’s voice (his “likeness”) was not used, so no rights of publicity were in play. Moreover, a right of publicity claim would likely fail under Section 301 of the Copyright Act’s preemption clause. Finally, there is no music publisher or record company involved because the copyright in the song is owned by White, and the copyright in the master recording is owned by White and Meg White.
The defendants are likely to argue that licensing was not required due to “fair use” just as the Trump Campaign argued in the case filed against it and former President Donald Trump by Eddy Grant in 2020. That case alleged the Trump Campaign used the song and master recording “Electric Avenue” in a campaign video posted to social media without permission. On September 13, 2024, the court issued a Motion for Summary Judgment on liability for copyright infringement in favor of Grant because each of the fair use factors “favors the plaintiffs.” Grant v. Trump, 20-cv-7103 (JGK), 24 (S.D.N.Y. Sep. 13, 2024).
This recent judgment should aid The White Stripes as the facts are similar. Just as “Electric Avenue” was not needed to convey the political message and the video was not satirical nor criticized or poked fun of the song or artist, the use of the famous “Seven Nation Army” riff in a video of Trump boarding an aircraft (and not even one to Wichita) is similarly not needed to convey any political message.
The White Stripes complaint does not include a false endorsement claim under the Lanham Act, likely because the copyright claims are so strong. To date, I am unaware of any successful court judgment on the merits in favor of a musical act/songwriter for false endorsement under the Lanham Act based on the use of a song or master recording.
Despite myriad objections from musicians, the Trump Campaign shows no signs of stopping its use of popular music. Due to the intricacies of copyright law and music licensing, each case will be fact-specific, and the Trump Campaign will no doubt continue to “fight ‘em off.”
Written by Tanya Curcio
Of Counsel, Kelly IP
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