;
Image: Fenty

“It’s been said a million times, but here’s a million and one — Trump’s rallies are unlike anything else in politics. Currently, Rihanna’s ‘Don’t Stop the Music’ is blaring in Chattanooga as aides toss free Trump T-shirts into the crowd, like a ball game. Everyone’s loving it,” Philip Rucker, the Washington Post’s White House Bureau Chief, tweeted on Sunday. Everyone but Rihanna was loving it, that is. Upon learning that her 2007 hit song is being played by the Trump camp, the singer-slash-budding beauty mogul, tweeted, “Not for much longer … me nor my people would ever be at or around one of those tragic rallies.”

Rihanna’s tweet comes just days after Pharrell Williams’ attorney sent a cease and desist letter to Trump for playing his’ song, “Happy,” at a recent rally. It also joins pushback from the likes of Neil Young, Axl Rose, R.E.M., Twisted Sister, Elton John, the Rolling Stones, and the estates of Prince and George Harrison, among others, who have all publicly complained about the “unauthorized use” of their songs at Trump events.

No small number of media outlets (some more accurately than others) have speculated about the legal rights that these artists have and thus, their ability to bring Trump’s rally soundtracks to a screeching halt. The consensus: this is a complicated issue. That is true in large part because of the fact that the protections afforded by U.S. copyright law – and the entities to whom those protections are afforded – are numerous.

In the U.S., a single song really consists of two protected elements: the master sound recording (the copyright for which is typically held by a record label), and the underlying written music composition (the copyright for which is typically held by the artist and his/her publisher). Using Rihanna’s “Don’t Stop the Music” as an example, the rights in the master sound recording are almost certainly held by her former record company, Def Jam. As for the underlying composition, that is likely held by Rihanna and her publisher.

In order to “publicly perform” Rihanna’s song (i.e., to play it in a bar or at a mall or in Trump’s case, in an arena), the party playing (or as the law words it, “performing”) the song must obtain a license for the underlying written music composition. Most artists/publishers affiliate with rights societies, such as the American Society of Composers, Authors and Publishers (“ASCAP”) or Broadcast Music Inc. (“BMI”), which issue licenses, collect payments and distribute royalties on their behalf.

This makes practical sense because Rihanna’s team and her publisher, for example, do not have the bandwidth to negotiate individual licenses with every single bar, store, arena, etc. in the U.S. that wants to play her music. So, the societies – such as ASCAP and BMI for music compositions, and SoundExchange for sound recordings – issue blanket licenses. In exchange for paying the applicable fees, a bar, for example, can play any of the songs of any of the many, many artists who are affiliated with that society.

That is the first part. In some cases, namely, when songs are being played by way of certain types of digital audio transmissions, including non-interactive digital radio broadcasts like SiriusXM, an additional license is required for the song recording. All other forms of public performance – such as when songs played over the radio and or by way of a bar owner’s own iTunes account – can be done for free, without authorization from the artist/owner of the sound recording. (That bar owner will still need the written music composition license, though).

Since it is highly unlikely that the music being played at Trump rallies is coming from a source like SiriusXM, our focus rests exclusively on the written music composition rights, for which ASCAP and BMI issue blanket licenses. So, for example, in exchange for paying the society’s licensing fees, a bar owner may obtain a license and play any of the songs of any of the artists who are affiliated with that society.

There is no artist/publisher approval here, meaning that if you (as an artist) affiliate with a society, you agree to allow your music to be publicly performed by ANY entity who pays the society’s fees.

This means that one way for the Trump rally organizers to get rights to a song without any consent from the artists is to obtain a blanket license from whatever society the artist affiliates with. In lieu of a obtaining a license of its own, the Trump camp may have relied on the University of Tennessee at Chattanooga’s McKenzie Arena, where the most recent rally took place. Chances are, the university likely has a blanket license from ASCAP or BMI to be able to play a whole slew of songs under its arena’s roof.

This seems like bad news for artists who don’t want their music used by Trump – if they affiliate with a society (which they almost certainly do), they seem to have no way of stopping Trump from making a legal public performance of their song. Having said all that, how likely is it that Rihanna and co. can get Trump to stop playing their songs? Their chances are slim given the licenses and types of use at play.

It is telling that while Trump has stopped playing Neil Young songs in response to push back from the artist’s camp, Rolling Stones songs continue to be heard in the background at rallies, much to the dismay of the band’s members. Such outrage on behalf of the Stones, particularly front man Mick Jagger, who has spoken out about this on Twitter, implies that if the band had a (legal) leg to stand on in terms of challenging the playing of its songs, it would have initiated a lawsuit already.

Chances are, artists likely have a better shot of prevailing not on copyright grounds but on unfair competition and/or right of publicity ones, instead. They could argue, at least in theory, that by playing their music at his rallies, Trump is: 1) using their likeness (which includes their voice) without their authorization, and/or 2) implying that they have endorsed or are otherwise connected with him, his campaign, policies, etc., as a result of his rally music choices. Yet, none of the musicians that have spoken out have initiated such a lawsuit.

As for what, exactly, Pharrell and co. hope to gain from sending cease and desist letters to Trump, they are likely looking more for public relations remedies and a relevance boost amongst politically-minded music listeners than anything legal in nature.