follow the money
Page: 2
Musicians and songwriters don’t tend to agree on much, but many of them want former president Donald Trump to stop playing their music at his political rallies and campaign events. Whether they can is a quadrennial quandary. The legal answer is yes, at least for songwriters: The big two U.S. performing rights organizations (PROs), ASCAP and BMI, require political campaigns to buy special licenses, from which rightsholders can pull specific works. (The other two, SESAC and GMR, do not issue campaign licenses but can make songs available.) But campaigns don’t always honor those requests.
The use of pop music in campaigns goes back at least a century: Franklin D. Roosevelt used “Happy Days Are Here Again” in his 1932 campaign, and Louisiana governor Jimmie Davis, also a singer, used “You Are My Sunshine,” to which he owned the copyright but did not write. Over the last decade, though, as politics has become more polarizing and pop culture has taken over life in the U.S., this has gone from a subject of occasional interest to one that gets considerable mainstream attention.
In most cases, the unauthorized use of music at a campaign event follows a sort of script: A candidate uses a song and musicians or writers have their lawyers send a cease and desist letter, partly because some campaigns will respect it but often because it’s just a good way to communicate their disapproval in public. How much do I dislike Trump? Enough to have my lawyer write a letter! Some musicians have these letters written, even though a public performance license for an event is only required for a composition, not a recording. Approval is only needed from musicians if the use of music implies an endorsement or involves video, which requires a separate synch license from a song’s publisher.
Now a few recent cases are making this issue more complicated. In mid-August, the estate of Isaac Hayes filed a lawsuit against Trump and his campaign for regularly using “Hold On, I’m Coming” as “outro” music at campaign events. (The estate is suing for copyright infringement, as well as under the Lanham Act, which would cover an implied endorsement, and there will be an emergency hearing in the case on Sept. 3.) Beyoncé has warned the Trump campaign about its use of her song “Freedom,” which has become a theme song for vice president Kamala Harris. And the Foo Fighters objected to the Trump campaign’s use of their song “My Hero” as Robert F. Kennedy Jr. took the stage to endorse Trump. (They have not sued.)
It seems like an accident of legal history that those three examples fall under the same law as playing a song during an hourlong wait for a candidate to take the stage. In the latter case, no involvement or endorsement is implied — the songs are just used as background music. These cases are different, though. The Hayes estate’s lawsuit claims Trump has used “Hold On, I’m Comin’” 134 times, often as “outro” music, which arguably makes it something of a theme. Beyoncé’s “Freedom” has become identified with the Harris campaign, which uses it with permission. And the Trump campaign used the Foo Fighters song to soundtrack a particular moment, knowing that it would spread widely on video, even though the campaign didn’t have a license for that.
These songs haven’t just been played in public — they have arguably been drafted into service for a cause the writers don’t agree with. “Hold On, I’m Comin’” has been played at Trump events both often and purposefully. Beyoncé should have the right to be identified with the candidate she wants to win. And the Foo Fighters song shows up in news coverage and online video, with the implication that Kennedy is some kind of hero for endorsing Trump.
Although we think of the use of music as a copyright issue involving a public performance, there’s more going on in all three of these cases. The current license system seems to work fine for the way campaigns use music at events in the background. But it would be nice if campaigns could agree with rightsholders, or even with one another, to get permission if a song is used in a way that will identify it with the candidate — and especially if it’s used for a moment that will be widely shared on video. This doesn’t necessarily follow legal logic, but it seems like common sense: If a campaign deliberately selects a song like “My Hero” to soundtrack a moment that is essentially designed to spread on video, doesn’t it make sense to get a video license? Who are we kidding?
Until the situation changes, creators will just keep objecting to the unauthorized use of their work — and they are starting to do so in more creative ways. The Foo Fighters have said they will donate the royalties from Trump’s use of “My Hero” to the Harris campaign. While the Hayes estate’s lawsuit goes forward, it might point out that although “Hold On, I’m Comin’” is played regularly at rallies — it was even rewritten as “Hold On! Edwin’s Coming” for the campaign of Louisiana governor Edwin Edwards — the song gets its name from what co-writer David Porter said to Hayes from the Stax Studios bathroom. If Trump isn’t using the restroom, perhaps another song might work better.
Politicians who use songs with permission also have some bragging rights. Tim Walz can say that Neil Young allowed him to use “Rockin’ in the Free Word” at the Democratic National Convention — an odd choice given the song’s sarcastic lyrics, but still great cred from a music icon. Harris can say the real “Freedom” is hers — and Beyoncé’s support with it. And we can all wait to see who Taylor Swift will endorse.
Presidential politics has been its own form of pop stardom for decades — certainly since Bill Clinton worked the saxophone on The Arsenio Hall Show, and probably since actor Ronald Reagan won the White House. At some point during that time, the party conventions became less like political meetings and more like pop concerts — staged presentations, usually in arenas that also host concerts, where icons perform their greatest hits. This year former president Barack Obama even came out during the Democratic National Convention to present a sly remix of his own tag line as a tribute to vice president Kamala Harris: “Yes she can.”
Like most remixes, this requires some knowledge of the original, so it’s not aimed at everyone — a 25-year-old voter would have been nine when Obama’s “Yes we can” campaign slogan first got big. The point is to rally superfans, excite influencers and inspire enough enthusiasm to pull in some undecided voters. It’s politics as cinematic universe — now with blinking LED wristbands and the “politics of joy.”
Increasingly, the modern way of expressing a worldview is to join a fan army, of a musician, a content creator, or even a politician. Now that pop culture has swallowed everything, fan relationships help people define what tribe they belong to, the way class or place of origin did before the Internet made those things so much less relevant. Supporting former president Donald Trump isn’t so much about favoring his policies, whatever they are, as about liking his frankness (or his insanity) or sharing his sense of grievance. (Isn’t everything rigged?)
The idea of a fan “army,” as opposed to a “club,” implies some kind of tension — or at least a tendency for devotees to define themselves against other tribes. Part of supporting Trump is condemning the media and “the deep state,” just like part of loving BTS is bemoaning that journalists just don’t get how great they are. Sides have always been chosen — think about the Beatles and the Rolling Stones — but now who fans don’t like is as important as who they do.
Not so long ago, politics involved… well, it involved more actual politics. Democrats wanted a bigger role for government, while Republicans like Grover Norquist wanted to drown it in the bathtub. Obama and Trump made it more about personality and worldview — “Yes we can” or “Make America great again.” (To Obama, the arc of history was bending toward justice; to Trump, everything was just going downhill.) Obama had plenty of policy ideas, but he campaigned on hope and change, which are hard to be against — who could run on despair and stasis? Besides, it’s harder than ever to pass ambitious legislation these days.
The conventions, which started as actual meetings and then became appointment viewing for people interested in politics, are now aimed more at fans of a certain party. And they deliver. Most people I know, most of whom are Democrats, think Harris did great, and I agree. But how could she not? She had an enthusiastic audience, good warm-up acts, even nice lighting. Most important, she has the momentum of momentum. The real question is how she’ll do with journalists and how she’d fare in a debate against Trump.
The closest thing to an open question was the potential for disruptive protests over the war in Israel and Gaza, which seemed like they could echo the ones that took place during the 1968 Democratic National Convention, also in Chicago. (With Hamas and Hezbollah firing rockets at Israel daily, it seems weird to refer to this as a war in Gaza.) Back then, anti-war protesters in Grant Park chanted “the whole world is watching” — a line from a Bob Dylan song — as police beat and arrested them. Recently, some did the same, but these days the whole world can now see everything on social media, though they can sometimes struggle to tell if it’s real or generated by AI.
After every big pop culture moment comes the fan army drama. In this case, that means Harris supporters have to convince far-leftists that they’re better off voting for her than staying home. Robert Kennedy plans to endorse Trump, because maybe he can get a look at the Roswell files. And Trump will complain that he’d be much more popular if only the charts were tabulated differently.
In November, we’ll figure out who’s No. 1. Until then, we have to wait and see if Taylor Swift will endorse a candidate — and whether either one will be half as effective as she is at using her dedicated fans to generate mainstream attention.
Once upon a time, most artists performed live to promote new albums. For most acts, the real money was in music sales, so they went “on the road” with schedules and strategies to maximize them.
These days the live business is a juggernaut of its own, with higher ticket prices, adjacent businesses like merch and VIP seats, and schedules, plus strategies of its own. So creators at all levels of popularity are starting to realize that it may no longer make sense to tour the whole country, or world, to promote a new release. In some cases, there isn’t one; in others a tour can boost an entire catalog. The old model of touring focused on building an audience, which meant artists would play cities where they weren’t so popular. Now touring is a revenue stream, so many artists double down to play more shows in cities where they’re already big.
The economics of touring means that acts run up costs every day they are on the road but only bring in revenue when they perform — so it makes sense to play bigger shows, in fewer places, with fewer days off. Metallica’s M72 tour consisted of two-night engagements and a no-repeat pledge to motivate fans to see both. The international legs of Taylor Swift’s Eras Tour involved more shows in fewer places — she covered Asia with four shows in Tokyo and six in Singapore and the Nordic region with three in Stockholm. The natural end of this thinking is a residency, or a few of them, and Adele took the summer off from her Vegas residency to play 10 shows in Munich at a custom-built venue with a capacity of 74,000. Why go to fans when fans can come to you?
Trending on Billboard
As it happens, this solves another problem with the touring business. As increasing competition for concert dollars inspires more elaborate productions, costs are skyrocketing — and many of them involve transportation and setup rather than a performance itself. For Metallica, much of the cost is in “load-in” — moving and building a doughnut-shaped stage with standing room in the middle, plus eight towers of speakers and monitors that weigh 11 tons each. The resulting expenses, which involve 87 trucks and several days of setup, make single shows difficult. Adele’s Munich show used what’s said to be the world’s biggest video screen, plus fireworks, confetti, smoke, fire and a string section. As expensive as that must be to build, imagine the cost of moving it and setting it up again a couple of times a week? How many venues even have room for a 220-meter-wide screen?
Doing more shows in fewer places also makes it practical to deliver events, rather than just concerts. Touring artists have to compete with festivals, which offer fans a lot of acts for their money, plus an experience to remember — and, not incidentally, share on social media. A memorable production, whether that means the world’s biggest screen or 11-ton speaker towers, can do the same. Personally, I don’t think Metallica or Adele needs any of this — I’d be just as happy to see either in a club, in front of a brick wall — but bigger productions seem to create a sense of FOMO.
Fans have certainly demonstrated their willingness to travel. When I saw Metallica last year in Hamburg, most concertgoers came from other German cities to see both shows. Swift’s European tour debut in Paris was filled with fans from the U.S. and Canada who realized that tickets there and a trip to France cost about the same as tickets back home. To some fans, Swift’s show is a vacation — Paris is just something to see on the way there.
In crude economic terms, concert travel essentially reallocates expenses from acts to fans — artists travel less, so concertgoers travel more. Most people don’t want to pay more than a certain amount for a concert ticket, but they seem more willing to spend on related travel. (I just spent about $300 to go to Stockholm to see Bruce Springsteen, an amount that seems too high to spend on a ticket, even though I essentially went to see the show.)
There are other costs and benefits, too. Younger fans can’t always travel alone. And as several European publications pointed out in their coverage of the Adele residency, this isn’t exactly good for the environment. (I think it makes more sense to tax travel rather than to object to a specific type of travel.) Residencies can also be more pleasant for artists — there are no songs about how nice it is to cross the U.S. in a tour bus. The flexibility is nice, too: Munich is a lot nicer in the summer than Las Vegas. Playing a few nights a week makes it easier to have a family life.
As much as I loved the Metallica and Adele shows, I think I still prefer the old model — although it’s easier for me to say that because I’m fortunate enough to live in a major city. I think there’s still long-term value in building a fan base the hard way. And I worry that fans who spend more money traveling to concerts will end up seeing fewer shows as a result. None of that changes the economics of touring, however, and organizing a profitable and artistically effective tour means understanding that.
The upcoming elections in the United States in November will be profoundly important, with consequences for the economy, foreign policy, technology and perhaps even democracy itself. From a music industry perspective, though, there just isn’t all that much at stake. After two decades of change, the industry has found a new business model in the U.S., in the form of paid subscription streaming, and there’s only so much a new president could do to either improve that or screw it up. Most of the industry’s policy priorities involve either legislation (which any president would almost certainly sign) or in-the-weeds rulemaking procedures.
You certainly don’t get this sense from artists and executives, most of whom support Vice President Kamala Harris, the presumptive Democratic nominee for president — and generally tend to vote Democrat. This probably comes from their personal politics — Harris doesn’t have an extensive track record on intellectual property policy or other issues important to the music business, although she was seen shopping for vinyl and appears to have excellent taste. (Make America analog again!) For all the disdain they get from media executives, Republican presidents have often been better for it, since they tend to reduce taxes, regulation and barriers to mergers. Same goes for legislators. Most music industry executives might not care for the politics of Sen. Marsha Blackburn (R-Tenn.), but she’s certainly helped their business.
Trending on Billboard
Which candidate would be better for any specific business isn’t entirely clear because, at a time when the world is growing more complicated, U.S. politicians seem to offer fewer specifics on complicated issues. Both Harris and former president Donald Trump seem to be running more on who they are than on what they plan to do. (Based on Trump’s comments at the National Association of Black Journalists event in Chicago on July 31, he seems to want to run on who Harris is, which says far more about who he is, and not in a good way.) Some of this seems inevitable — Trump likes to change his mind and Harris only entered the race after President Joe Biden dropped out of it on July 21. It might just reflect an increasingly tribalized electorate.
The music industry’s biggest issues have remained bipartisan, though, and they seem to occupy a rare demilitarized zone between parties in which politicians who don’t normally agree on much come together. The quintessential example is copyright, which often unites Republicans who favor property rights and Democrats who want to support the arts. The most complicated and important part of the 2018 Music Modernization Act was introduced in the House of Representatives by Rep. Hakeem Jeffries (D-NY) and Rep. Doug Collins (R-Ga.), who may not agree on much else. (In 2018, they shared their “Summertime Heat” playlist with Billboard.) This year, the NO FAKES Act brought together Blackburn and Sen. Amy Klobuchar (D-Minn.), among others.
The industry’s traditional opponent on strong copyright is Silicon Valley platforms, which had a lot of power under former president Barack Obama. (Months ago, I saw Obama talk about the dangers of online misinformation without mentioning that he did little to regulate the platforms it’s on.) Biden, who has been a strong supporter of copyright, has been more skeptical of Big Tech. Now venture capitalists and technology companies, who tend to vote Democrat but favor libertarian politics, are courting both parties. Reid Hoffman and a group of 100 venture capitalists have announced their support for Harris, while Trump’s choice for Vice President, J. D. Vance, sometimes seems to operate as a wholly owned subsidiary of arch-libertarian Peter Thiel. The next president will inevitably be asked to deregulate artificial intelligence at the expense of the rightsholders who own the works it will be trained on — the only question is who it will be. Investors will also push to legitimize cryptocurrency — or at least reduce the legal barriers to pretending that it’s an investment instead of a high-end pyramid scheme.
The other big issue these days is antitrust law, which the Biden-appointed Federal Trade Commission chair Lina Khan is trying to strengthen. The immediate issue is the Justice Department’s antitrust lawsuit against Live Nation Entertainment, but more aggressive antitrust enforcement would also make it harder for the major labels to buy catalogs and companies. Although constraining the majors could make it easier for smaller companies to compete, it could also reduce the number of potential buyers they might attract. And although Republicans have traditionally wanted to weaken antitrust law, some populists now see it as a tool to reduce the power of platforms like Google.
The next president’s ability to help or hurt the music business may come down to putting copyright provisions in trade treaties, which doesn’t really resonate with the public. AI initiatives could matter, too. More AI legislation will almost certainly follow the NO FAKES Act, but that debate mostly sets different businesses against one another. (The NMPA recently asked the House and Senate Judiciary Committees to adjust copyright law, but that’s not going to happen so soon.) It’s harder than ever to pass federal legislation, and the president can only do so much to help.
The music business will also try to get wins on smaller issues — whether it’s legal to train an AI on copyrighted content and how much involvement of AI makes a work ineligible for copyright. These are the kind of subjects that require position papers rather than strong rhetoric. But we may not see those until 2025.
As a music journalist, I tend to look at fan armies with only professional interest — what they mean for the industry and how I can make sure they won’t figure out where I live. Last week, however, I suddenly had to face the fact that I’m in one — and I have been for the last 35 years. And I realized that many creators might need to change the way they think about cultivating and keeping superfans.
I went to Stockholm last week to see Bruce Springsteen, one of my favorite artists, for what must be at least the 30th time. I stayed in a hotel close to the venue, which was full of people like me — by which I mean Springsteen fans of a certain age (ahem) who wanted to see the concert enough to travel from all over Northern Europe and, in some cases, the U.S. Many came with spouses or children, and some planned on seeing a few shows — or even a couple of weeks’ worth. One couple said that they were happy Springsteen now gives himself a couple of days off between shows, since it gave them more time for sightseeing during the vacations they organize around concerts.
These people don’t think of themselves as part of a fan army. They don’t have a nickname or collect different versions of the same CD. I don’t, either. In fact, I feel a bit sheepish saying that this concert was one of the highlights of my summer, or that I spent a few hundred dollars to go, but it is and I did, and it was totally worth it. After the show, about two dozen people gathered in the lobby after the show to talk highlights and trade war stories, and some of them gathered again the following night after cancelled flights left them stranded in Stockholm. I feel even more sheepish about how much I enjoyed that.
Trending on Billboard
Whatever. From a music business perspective, this is just what superfans do. One difference between his and most is that Springsteen built his audience the old-fashioned way — with unforgettable live shows that convinced fans to come back and bring friends (and, these days, kids). The people in my hotel are obviously the exception — I’m talking about a few dozen people in a venue that holds more than 50,000 — but at this point I think Springsteen concerts mostly draw serious fans. (Springsteen opened with “Seeds,” which he only ever released as a live performance on a 1986 box set, so I assume he thinks the same.) And although it’s hard to be sure, I think most of them were won over by his concerts.
These days, music executives focus less on live acts — how live are most pop performances anyway? — and more on hit singles. Fan armies are built online, usually around the shared experience of hoping a song will go to No. 1 or buying extra copies in order to boost it. But how long will that last? The music you love when you’re young tends to remain in your life, but going to concerts might have more appeal over time than trading gossip about chart position online. Cultivating an audience devoted enough to keep coming back year after year can be much harder — but it can also be more effective.
The problem is that this part of the business is hard to see in data. Industry executives often talk about how much superfans are worth in terms of the CDs or tchotchkes they buy, but it’s harder to measure the effect of fans who keep coming back over the course of years. I saw one Springsteen show this year and two last year, which doesn’t really move the needle. The 30-or-so shows I’ve seen would, of course, but those were over a period of 36 years — starting with, if you’re curious, the Tunnel of Love Tour in May 1988. (I was already enough of a fan to attend two of the five shows — and then I was really hooked.)
What keeps me coming back — and I think what keeps most fans coming back — is that Springsteen delivers shows that are both consistently great and fairly different. If he’s had an off night, I haven’t seen it. At the same time, he makes every tour different and varies the set list every night, with moments of genuine magic — in Stockholm he delivered a haunting “Racing in the Street” and pulled a kid up onstage to sing the chorus of “Waitin’ on a Sunny Day.” Others keep going back to hear rare favorites — seeing Springsteen play “Jole Blon” in September 2012 was a profound experience for me, even if most of my friends had absolutely no idea what I was talking about.
You could say a lot of these things about a lot of rock bands — there was a time when playing a different set every night was the rule instead of the exception. And it does seem to draw people in. Fans love a curveball of a cover, and some even appreciate the flubs — there’s so much more at stake without the artificial perfection that comes from a click track. Communities are built from appreciating, comparing and, yes, griping about difference performances. Just read the New Yorker story about Dead & Company to get the idea.
Like any true fan, I’m going to say Springsteen is different. More than any other current artist, he believes — and gets concertgoers to believe, at least for the time he’s onstage — that rock actually matters, that there’s more at stake onstage than entertainment, that this kind of music can actually sustain you. As I get older, with less time to drive down an empty highway for no reason at all, it gets harder to believe that. But I’d like to. Maybe in some way I need to — so much that I’ll be back next year and probably again the year after that.
For a little over a year, since the Fake Drake track bum rushed the music business, executives have been debating whether generative artificial intelligence is a threat or an opportunity. The answer is both — creators are already using AI tools and they already compete with AI music. But the future will be shaped by the lawsuits the major labels filed two weeks ago against Suno and Udio for copyright infringement for allegedly using the labels’ music to train their AI programs.
Like most debates about technology, this one will be resolved in real time — Internet start-ups tend to believe that it’s easier to ask forgiveness than to get permission. Although neither Suno nor Udio has said that it trained its program on major label music, the label lawsuits point out that both companies have said that using copyrighted works in this manner would be “fair use,” a defense for otherwise infringing conduct. They’re not admitting they did it — just defending themselves in case they did.
Trending on Billboard
Whether this qualifies as fair use is well over a million-dollar question, since statutory damages can reach $150,000 per work infringed. The stakes are even higher than that, though. If ingesting copyrighted works on a mass scale to train an AI is allowed under fair use, the music business could have a hard time limiting, controlling, or making money on this technology.
If it’s not, the labels will gain at least some control over these companies, and perhaps the entire nascent sector. There are other ways to limit AI, from legislation to likeness rights, but only copyright law has the kind of statutory damages that offer real leverage.
Although neither Suno nor Udio has issued a legal response, Suno CEO Mikey Shulman released a statement that said the labels had “reverted to their old lawyer-led playbook.” The obvious reference is Napster, since most people believe that in the late ‘90s the music business saw the future and decided to sue it.
That’s not exactly what happened. The major labels knew that the future was digital — they lobbied for the 1995 Digital Performance Right in Sound Recordings Act, which ensured that streaming services had to pay to play recordings in the U.S., even though traditional radio stations don’t. They just didn’t want peer-to-peer services to distribute their content for nothing — or to have to negotiate with them while they were doing so. In July 2000, three months after the major labels sued Napster, leading executives sat down with the company to try to figure out a deal, but they couldn’t agree; the labels negotiated as though Napster needed a license and Napster negotiated as though it didn’t. In the end, after a decade of lawsuits and lost business, creators and rightsholders established their right to be paid for online distribution and the music sector began recovering.
And here we are again: History isn’t repeating itself, but it seems to be rhyming. If the labels negotiated with Suno and Udio now, how much would those companies be willing to pay for rights they may or may not need? It’s easy to make fun of either side, but it’s hard to know how much to charge for rights, or pay for them, before you even know if you need them.
These lawsuits aren’t about whether creators and rightsholders should embrace or avoid AI — it’s coming, for good and ill. The question, in modern terminology, is whether the embrace will be consensual, and under what terms. Most creators and rightsholders want to do business with AI companies, as long as that actually means business — negotiating deals in something that resembles a free market.
What they’re afraid of is having technology companies build empires on their work without paying to use it — especially to create a product that creates music that will compete with them. That depends on the outcome of these lawsuits. Because if you don’t have the right to say no, you can’t really get to a fair yes.
A couple of weeks ago, at a culture conference organized by the German recorded music trade organization, I heard German Justice Minister Marco Buschmann put this as well as anyone I’ve ever heard. “The moment people have the opportunity to say ‘No’ and to enforce this ‘No,’ they gain a legal negotiating position,” he said in a speech. (Buschmann also makes electronic music, as it happens.) In the European Union, rightsholders can opt out of AI ingestion, which is far from ideal but better than nothing.
What happens in the U.S. — which often shapes the global media business — might hinge on the results of these lawsuits. There are two dozen copyright lawsuits about AI, but these look to be among the most important. Some of the others are mired in jurisdictional maneuvering, while others simply aren’t as strong: a lawsuit filed by The New York Times could involve a different fair use determination if the ingested articles are used as sources but not to generate new work. These cases are straightforward, but they won’t move fast: It’s easy to imagine the issue going to the Supreme Court.
Despite the high stakes — and what will almost certainly be a rap beef’s worth of sniping back and forth — determinations of fair use involve a considerable amount of nuance. Fair use makes it legal in some cases to excerpt or even use all of a copyrighted work without permission, usually for the purposes of commentary. (An iconic Supreme Court case involved 2 Live Crew’s parody of the Roy Orbison song “Oh, Pretty Woman.”) This is far from that, but Suno and Udio will presumably argue that their actions qualify as “transformative use” in the way the Google Books project did. Next week I’ll write about the arguments we can expect to hear, the decisions we could see, and what could happen while we wait for them.