politics

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.