Trump Settles With Isaac Hayes’ Estate Over Use Of Music During The Campaign
from the hold-on,-i'm-settlin' dept
One of the unfortunate knock on effects of being generally insufferable is that many people don’t want to be associated with you in any way. And when you’re both insufferable and happen to be the most divisive American political figure in modern history, all the more so. And that is certainly why, during both of the Donald Trump presidential campaigns, it became common practice for musical artists to complain about his “unauthorized” use of their music at his campaign events.
Now, as this site has posted out a zillion times in the past, many of the complaints from artists are unfounded. Often, the use of the music in question was authorized through blanket performance licenses held by the venues for the rallies. While it should be obvious that best practice would be for candidates like Trump to seek permission to use music just to avoid any public complaining and backlash for that use, there is no real copyright claim to be had in those instances. Lots of people get this wrong.
Where that gets thrown for a loop is when it comes to sound recordings from before 1972. Here’s how Mike described it all back in 2016.
Copyright law is so screwed up that there actually may be a case where the law does require permission. And it has to do with pre-1972 sound recordings. If you’ve been reading Techdirt for any length of time, you know that we’ve discussed this issue many times in the past. Historically, while compositions were covered by copyright, under the 1909 Copyright Act sound recordings were not. This resulted in a patchwork of state laws (and state commonlaw) that created special forms of copyright at the state level. Eventually, sound recordings were put under federal copyright law, but it only applied to works recorded after February 14, 1972. Works recorded before that are not under federal copyright law, but remain basically the only things under those state copyright laws (the 1976 Copyright Act basically wiped out state copyright laws for everything but that one tiny thing).
The issue is not that simple, because nothing around this particular issue is simple. However, based on at least some of the rulings in pre-1972 sound recording copyright cases, federal copyright law doesn’t apply at all to those songs (other court opinions have come out otherwise). And thus, there’s an argument that the requirements involving blanket licenses for pre-1972 sound recordings may not apply, because the use of the sound recording may require a special public performance license from the copyright holder
And so now we have a decade or so of courts trying to figure this out. The outcomes of court cases are every bit as patchwork as the state laws that inform their outcomes. Add to all of this that even some of the blanket licenses from the likes of ASCAP include opt-outs for political campaigns and the like and it’s easy for all kinds of mistakes to be made.
Mistakes don’t really explain the rash of instances of artists complaining about Trump’s usage, however. He’s been through this so many times, in fact, that it seems obvious that he and his people simply don’t care to try to secure permission. I doubt they even looked into whether they needed to. And the onus to understand what licensing is needed is certainly on their shoulders and nobody else’s. That’s how you get Pharrell clapping back on Trump’s use of his music at an insane rally shortly after a nationalist murdered 11 people in Pittsburgh (the venue didn’t have a license from the artist’s rights management of choice). Or his campaign losing a copyright suit to Eddy Grant for the use of his music in a campaign video.
And, now, it’s also how you get the Trump campaign to settle a suit brought by the estate of Isaac Hayes over the song he co-wrote, Hold on, I’m Comin’, performed by Sam & Dave.
Hayes’ son and estate manager, music producer Isaac Hayes III, says in a Monday (Feb. 23) Instagram statement that the lawsuit “has been mutually resolved, and we are satisfied with the outcome.” Financial terms of the settlement were not disclosed.
“This resolution represents more than the conclusion of a legal matter,” writes Hayes III in his statement. “It reaffirms the importance of protecting intellectual property rights and copyrights, especially as they relate to legacy, ownership and the responsible use of creative works.”
It will surprise nobody that I would love to debate most of what appears in that quote from Hayes III, but that is a separate matter entirely. Instead, my focus is on two undeniable realities. First, the chaos that has been created with these older, pre-1972 song recordings is insane, complicated, and needlessly convoluted. Whoever thought this setup was a good idea should be placed in a facility under constant care.
Second, Trump almost certainly committed copyright infringement, the above complaint notwithstanding. And he’s been through enough of these that he could very easily tell his people to just go get the proper permissions for any music that is played at his little fascism pep rallies. While the settlement terms go undisclosed, which is always annoying, I’ve seen enough of these to be able to read between the lines. The Hayes estate got its pint of blood, at a bare minimum.
Wouldn’t it just be easier to get artists that like you to let you play their music at your events, Donald? There were at least a few artists at that emotional support half time show that nobody watched that you could choose from.
Filed Under: copyright, donald trump, isaac hayes, licensing, pre-1972 sound recordings, sam & dave, settlement
Comments on “Trump Settles With Isaac Hayes’ Estate Over Use Of Music During The Campaign”
It’s too bad Trump didn’t have to settle this with Isaac Hayes himself, in person. THAT would have been “must-see TV”.
This is a little like the discussion of “personality rights” vs. “copyright” vs. claiming something in a way that looks like someone is providing an “endorsement” of your product when they do not.
For instance, the copyright on a photo of a noted amateur golfer normally belongs to the photographer (or someone, like a newspaper publisher, who paid to photographer to cover the golf match). Take that photo, buy it from the original photographer, print it on a manufacturer ad for xyz-brand golf balls with the caption “they’re fine quality and priced right, sir” that’s not a copyright problem as the copyright belongs to the photographer, not the golfer.
You do, however, have a legal problem as there was a red-line separation in the day between gentlemen amateurs and pro golfers. Someone who was taking money for what they do would not be eligible to compete in the same league as the amateur gentleman, and that ad makes it look as if the golfer is taking payola from the golf ball manufacturer. That’s not copyvio, but at least one court has held that it is libel.
So don’t claim that Woody Allen endorsement unless you paid Woody off and he accepted the bribe. That can get you sued.
Another classic example is a naive scoutmaster uploading a group photo of his boy scouts to Wikipedia’s [[scouting]] article. Someone else then rips off the photo (which is fair game as Wikipedia’s licence allows free attributed use under copyleft) and uses it on for-profit Wikia/FANDOM (which was originally controlled by many of the same people) to illustrate an article eroticising spanking. Copyright won’t help you (and Wikipedia’s ideological opposition to copyright only rubs salt into that would) but you will have one very angry scout troop. There’s something called “personality rights”.
The response of Wikimedia and Creative Commons was to create a CC-BY-SA 4.0 licence which is even less creator-friendly as its predecessors and tries to sign away those rights too. No, it’s not OK.
Yeah, in case you haven’t noticed that’s how he treats every law.