It’s quite a lot like that one, just launched a week or so ago. The same week Eddy Grant won summary judgment.
For Donald Trump, who can boast thirty-some-odd felonies, a tort barely moves the needle. But since copyright infringement is the area a forensic musicologist cares about, we are talking about this dufus and the bad week he had JUST IN TERMS OF COPYRIGHT. Nevermind the dumbass “they’re eating the dogs; they’re eating the cats” business. Overall, Trump had an exceptionally bad week, from getting his ass handed to him by Kamala Harris in what I’d imagine will be the only presidential debate, to very possibly being targeted again by a guy hiding in the golf course bushes with a gun. In between though, a bunch of musicological issues.
Some of which, aren’t much, mostly noise. Every election season is also the season of artists making headlines saying, “We’re going to sue you if you don’t stop playing our music.” And most of the time, it’s fairly silly. Internalize this point and please stop playing lawyer on Facebook to your increasingly old and out-of-touch friends: the point is that most of the time, the campaign of that politician you dislike is allowed to play that song you like a lot without its increasingly old and out-of-touch artist’s permission because of what are called “blanket licenses.” Blanket licenses are reasonable and efficient. Your local restaurant playing music on its patio is paying performance royalties whether it’s a guy with a guitar in the corner or Apple Music playing over the speakers. It varies but let’s say, it’s $2000 a year to play whatever they want on any given day. Since what they want is more likely to be Taylor Swift than Lee Greenwood, Swift will be allocated a larger share of that $2000 but the actual number of song plays will be somewhat of an estimate. Your local restaurant may love Lee Greenwood and has a Lee Greenwood playlist 24/7. Whatever. Blanket licenses make sense. They’re not there to sidestep the wishes of Jack White or Neil Young, they’re more like Jack White’s bread and butter.
No great limb crawl here, some artists really hate Donald Trump, so we hear about it a lot. I’m sure there are less divisive politicians getting away with playing whatever they want all the time. Trump gets most of the headlines. But when artists say, “We didn’t give Trump permission!” most of the time, in a broad sense, they sort of did.
However, not always. A Musicologize article explains, the PRO’s (Performance Royalty Organizations) created a carve-out policy so that artists could more easily exclude political uses while preserving those restaurant, bars, and elevator uses, and lots of artists sign those carve-outs. If you’re a politician, sure, you might look at the list and select your music accordingly, but sometimes, clearly, they can’t be bothered. So what happens is perhaps what Issac Hayes’s family has going on. Trump uses “Hold on I’m Comin'” by Sam and Dave, but which Chef co-wrote and so Hayes’s family says something like, “We signed the opt-out, and we’re putting you on notice, stop playing it.”
Then when Trump plays it again, they’ve got him, which Musicologize’s Brian McBrearty says they probably do. Trump didn’t have that great a week prior either, a federal judge issued a preliminary injunction barring the campaign from playing “Hold On, I’m Comin'” again.
But not all of these cases are equal or even all that equivalent. It’s one thing to play a song in an elevator, restaurant, or political event but QUITE another to place a piece of music in a video.
You really can’t do that. Typing, “no copyright infringement intended” will not change the fact that you really can’t do that.
Early this week, before the dogs and cats thing, Jack White of The White Stripes announced he was going to sue Trump — not at all the same thing as the Foo Fighters, Beyoncé, Celine, the list goes on — this one has teeth. The White Stripes “Seven Nation Army” was evidently placed in a campaign video that was posted online. So, this is much more like the case Eddy Grant brought years ago when Trump attached “Electric Avenue” to a campaign video.
On Friday of Trump’s fantastic week, that case was decided in Grant’s favor. Aaron Moss’s excellent blog “Copyright Lately” covered the summary judgment story. And it’s particularly interesting for a few reasons. First, the Trump lawyers’ Fair Use defense, which Musicologize said four years ago would fail, FAILED. You can read the decision here. All that’s left now is to award damages. Musicogize wondered if there’s a prediction market bet to be placed, and would have its chip sitting at $450k or so.
In the same week that The White Stripes sue him for an unlicensed video sync, Trump lost in a summary judgment decision the four-year-running Electric Avenue case that looks a ton like his “Seven Nation Army” case, and preemptively takes a lot of the starch out of a presumptive Fair Use argument.
Compared to a guy in the bushes with a gun, which is flat out awful, and scary, this is all nothing, as I suppose it is compared with thirty-something felonies, but by any measure, as “Copyright Lately” said, a really bad week.