It’s an old problem being made new again. Neil Young is suing the Trump campaign for using his song at a rally and is calling it copyright infringement.
Political parties on both sides of the aisle have been doing this for years, and it’s rarely brought into the legal spotlight. But people jumped on this one. Go figure…
The average copyright case works on the basic premise, “I created something, I have a copyright on it. You need to ask for permission before you copy it or use it.” It’s actually a fairly easy legal issue for the layperson to understand and most clear-cut factual patterns that fit that legal framework don’t see the light of day because there isn’t a genuine factual dispute to litigate.
But this one is a little bit different, because of how the song was used, and how the artist feels about his work being used. In part, the suit reads,
“This complaint is not intended to disrespect the rights and opinions of American citizens, who are free to support the candidate of their choosing. However, the Plaintiff in good conscience cannot allow his music to be used as a theme song for a divisive, un-American campaign of ignorance and hate.”
At its core, there may be some simple copyright infringement going on. But there is more to this story and some unique aspects of copyright law and licensing at issue.
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Basics of Copyright Infringement
The “permission to use” part is at the core of most copyright cases. If the Trump campaign had their ducks in a row and received permission, the claim of copyright infringement would instantly fail.
The default is that permission is needed for someone to use or perform the music of someone else (i.e. the author). No one is exempt regardless of their intentions or purpose. For example, churches and cover bands are no different. When a worship team or cover band plays someone else’s music, that is copyright infringement if they haven’t purchased some form of license to the music. So you might notice sometimes in the lyrics on the screen, or within written words, a CCLI license number. That is for the Christian Copyright Licensing International organization that licenses that music. Performance venues usually have these types of blanket licenses in place as well to cover the performance of other’s music in their venues. Or the band itself may own a license.
Organizations are allowed to purchase these blanket performance rights to one of these clearinghouses in the music world, as long as the artist gives them (the licensing organization) permission to use that music. The organization then pays an annual fee, so they have blanket rights to use all the songs under that agreement.
While the facts are fuzzy from the Trump campaign, it is likely that they did not obtain such a license. So, Neil Young can sue for straight-up copyright infringement.
Types of Copyright Infringement
There are two different types of clearinghouse-type licenses out there for commercial use that a political campaign might utilize.
- Broadcast rights are for background music in a campaign commercial that might get broadcast on television over and over.
- A performance license (what this case is referencing) is for music that’s played in a live setting, typically not recorded or repeated.
Understandably, the first one is harder to get and much more expensive.
Is the Trump Campaign on the Hook?
It should be an open and shut case. If the campaign purchased the performance license, then they have the right to use it and the case should just go away. My guess is that they didn’t and now they’re just throwing stuff together really quick because it might take weeks or months to get that license.
There are some really interesting nuances in the copyright laws, but also in how the copyright laws affect artists in these situations.
This case has moved a little bit since it was first filed in August. A civil summons was issued in the U.S. District Court for the Southern District of New York, with Senior U.S. District Court Judge Naomi Reice Buchwald, a Clinton appointee, receiving the assignment. It was subsequently designated to Magistrate Judge Ona T. Wang.
The Trump campaign was issued an electronic summons as well — so the case is proceeding along normal civil court timelines. An update on the case beyond that has not been released.
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The Bottom Line
If the Trump campaign is found to not have a license to this song, traditional notions of remedies and copyright law come into play. That means Neil Young may be entitled to up to $150,000 per “copy” if the infringement was found to be willful. It’s interesting because it was at a rally, so you would presume it’s just a single instance of performing that song. But, that rally was recorded and now it’s now on YouTube with more than 500,000 views/downloads/copies…
Each click on YouTube may be considered a separate copy under copyright law, particularly if the campaign allows people to download the video. So if the stars align with Neil Young, and the Trump campaign did actually commit copyright infringement, the payout could be huge.
To apply the maximum statutory damages allowed (up to $150,000 per copy) times 522,909 views, Neil Young is looking at $65 billion.
It obviously wouldn’t happen that way when it came time to actual damages. But this is an interesting case to see how far this can go. At least the math is interesting. But math has never really been Trump’s strong suit.
Is this case the first of its kind? Not really. Both political parties have been doing this for years. But, it does illustrate just how expensive copyright infringement can get. And how simple it can be to avoid liability.