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Neil Young’s decision this week to sue President Trump’s campaign for playing “Rockin’ in the Free World” at his rallies marks an escalation beyond mere amplifier noise in a longtime conflict between musicians and politicians. 

Ever since at least 1984, when Bruce Springsteen objected to Ronald Reagan’s invoking “Born in the U.S.A.,” artists have been content to complain loudly when politicians they oppose use their anthems.

Back in 1984, Bruce Springsteen just complained. Musicians appear more touchy about political uses of their music now.

But in what entertainment lawyers called a break with that past, Young’s federal lawsuit filed Tuesday in New York alleges breach of copyright, contending the campaign had no permission to play two songs, “Rockin’ ” and “Devil’s Sidewalk,” at a June rally in Tulsa.

“The campaign does not now have and did not at the time of the Tulsa rally, have a license or plaintiff’s permission to play the two songs at any public political event,” the complaint says.

The lawsuit from the Canadian-born Young – who in January announced he had obtained dual citizenship in order to vote against Trump  follows a July 28 letter signed by dozens of artists to the national committees of both political parties, asking that they obtain permission before using their songs.

That assertive posture is also a departure from musicians’ past complacency, when they would neglect to take simple steps to cordon off their tunes – either through unawareness of their options or a desire for publicity or performance royalties.

"What is happening now is more simplistic; it’s not nuanced at all,” said Tom Kulik, a Dallas-based intellectual property lawyer. “It’s, ‘I don’t like your politics and so you can’t use my song.’ ”

On Young's website, the 74-year-old rock icon explained: “Imagine what it feels like to hear ‘Rockin’ in the Free World’ after this President speaks, like it is his theme song. I did not write it for that.” (The 1989 hit, on the album "Freedom," was actually a sarcastic slam at the first President Bush.)

The Trump campaign did not respond to an email seeking comment. Nor did Young’s representatives at Warner Music and Lookout Management. 

Trump at the Tulsa rally, where Neil Young's music was played. The artist was not pleased, and this time he's making a federal case of it.
(AP Photo/Sue Ogrocki)

Although dealings between Young and the Trump campaign are not clear, the musician didn’t necessarily have to go to court to protect his music – he could have just asked that it not be made available. Whether he did so could not be determined.

Songs at campaign events are played via a license the campaign or venue has secured with a performing rights organization, or PRO.  “There is a provision, however, which states if a songwriter or music publisher objects to the use of a specific song" -- or even an entire catalog -- "BMI can remove that song from the license,” said Jodie Thomas, a spokesperson for BMI, the largest PRO in the United States. “Therefore, that particular song can no longer be associated with the campaign as part of the licensing agreement.” In 2012 BMI created a specific political entities license that authorized public performance of over 15 million songs handled by the organization. 

Performing rights group ASCAP has a similar policy. According to its website, ASCAP members may ask “to exclude specific songs from a particular political campaign’s license. In that event, ASCAP will notify the campaign of the excluded works.”

If a campaign continues to use an excluded song, artists can turn to the legal system.

Such arrangements are different from ones covering uses of songs in soundtracks or videos, where a different legal permission applies. After airing a presidential campaign video in 2008, the late Republican Sen. John McCain settled for an undisclosed amount a copyright case brought by Jackson Browne over the unauthorized use of the singer-songwriter’s 1978 song “Runnin’ on Empty.” 

Springsteen’s rebuff of President Reagan's 1984 re-election campaign was over what the artist perceived as a misinterpretation of “Born in the U.S.A.” But the song was never played at a Reagan rally. The President had instead referred in a speech to Springsteen as a hopeful American, alluding to the song as well as the eponymous album released that year. Springsteen, though, intended the song as a protest of the way Vietnam veterans are treated stateside.

Speaking of the current polarized climate, Christian Fuller, an entertainment attorney in Detroit, noted a paradox: Performance law in the U.S. is set up to permit the playing of songs and get artists paid.

“This is the only area I’m aware of in public performance where artists are attempting to restrict public performance of their work," said Fuller. "The whole system of public performance is set up to make it easier to happen.”

In the case of Young, though, the filing of the lawsuit gave him an opportunity to promote a reworking, with anti-Trump lyrics, of “Lookin’ for a Leader,” a 2006 song that suggested the rise of Barack Obama.

Young’s lawsuit is the first of its kind, lawyers in the field agree -- despite some of the wealthiest artists in the world, with white-shoe legal teams at their disposal, voicing objections over the use of the perceived misappropriation of their music. 

“This has never been tested in court,” Kulik, the Dallas intellectual-property lawyer, said.

One factor that helps explain the scarcity of such lawsuits: Litigating an intellectual property issue is expensive, said Larry Iser, the attorney who represented Jackson Browne in his case against McCain.

“If you are the Rolling Stones or any artist who would prefer not to spend money on litigation, aren’t you better off going on social media and letting everyone know that [a song’s use] was unauthorized?” Iser said. “You get a lot of bang for that buck compared to two years litigating a case and spending $1 million in legal fees.”

The use of contemporary, unchanged pop tunes in political rallies began around the 1980s. Until then, campaigns favored songs that were altered to fit the moment, often by the artists who made the tunes famous.

In 1840, a jeweler from Ohio wrote a song that became “Tippecanoe and Tyler Too," adapted by the Whig Party and presidential candidate William Henry Harrison, who successfully challenged incumbent President Martin Van Buren.

Irving Berlin wrote “I Like Ike” in 1952, set to a song from his 1950 musical “Call Me Madam.”

Frank Sinatra, a supporter of honorary Rat Pack member John F. Kennedy, altered the lyrics to his 1959 hit “High Hopes” to support Kennedy’s 1960 presidential campaign. Sinatra’s power was such that the writers of the song didn’t object.

“By the ’60s, you had television and that was a watershed moment for music in campaigns,” said Dana Gorzelany-Mostak, an assistant professor of music at Georgia College and State University, who oversees a database of campaign music. “It became an effective tool for rallying the faithful.”

Gorzelany-Mostak said conflicts over song usages arise involving candidates from both parties, although most protests stem from conservative politicians using music.

“Some artists aren’t bothered by it, but I think those tend to be artists whose beliefs align more with [conservative] politics,” she said.

 

Correction, Thursday, August 13, 2020, 04:00 PM Eastern Time

An earlier version of this article misstated the year the music-rights manager BMI started issuing political entities licenses. It was 2012, not 2010.

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