“Hold On” You Can’t Use That Music in Your Presidential Campaign

The estate of the late singer and songwriter Isaac Hayes sued former President Donald Trump for using one of his songs at campaign events and rallies. Scott Hervey and Tara Sattler discuss this case in this installment of The Briefing.

Watch this episode on the Weintraub YouTube channel.

Show Notes:

Scott:
In August of this year, the estate of legendary singer and songwriter Isaac Hayes sued former President and current presidential candidate Donald Trump and his campaign for using the song ‘Hold On, I’m Coming’ at political events and rallies. In mid-September, the US District Court for the Northern District of Georgia partially granted Hayes’ estate’s motion for a preliminary injunction. This case raises some interesting issues about the public performance of music, how it’s licensed, and the controls musicians have over its use.

I’m Scott Hervey from Weintraub Tobin, and we’re joined today by Tara Sattler as we talk about the recent ruling in Isaac Hayes enterprises versus Donald Trump enterprise on today’s episode of The Briefing.

Tara, it’s good to have you back.

Tara:
Thanks for having me. I’m Glad to be back.

Scott:
Let’s jump into the case. I must say, combining politics and copyright law might be the only way to make C-Span seem more exciting in comparison. Can you give me a brief breakdown of the facts.

Tara:
Sure. This case goes back to Trump’s use of the song, Hold on, I’m Coming, since 2020. Apparently, he played the song at political rallies and events more than a hundred times since then. Hayes Enterprises, which owns all of Isaac Hayes’ publishing and music rights, sent the Trump campaign a letter back in 2020, demanding that it stop using the song. Apparently, that never happened. The Trump campaign continued to use the song as part of the campaign, and Hayes Enterprises eventually filed suit in August of 2024 and moved for a preliminary injunction.

Scott:
So one interesting twist in the case is that the Trump campaign did initially have permission to use the song. The campaign had a public performance license through BMI, which generally allows for the use of a wide range of music in the public performance of that music. Now, that brings up an important point about music licensing in public performance. Public performance rights are a crucial aspect of music copyright. When a song is played in public, such as in a restaurant or a bar, and in this case at a political rally, that use requires a license. Those licenses are obtained in the US from performance rights organizations or PROs, and those are organizations like BMI, ASCAP, and CSAC, and they manage those rights, the performance rights for songwriters and for publishers. Pros offer blanket license that cover a large catalog of songs. Now, blanket license allows the licensee to use any song in the PROs catalog. However, specific songs can be excluded even after the license has been granted.

Tara:
Right. Paragraph 2A of the BMI Music License for Political Entities states that one or more works or catalogs of works by one or more BMI songwriters may be excluded from this license if notice is received by BMI that such BMI songwriters object to the use of their copyrighted works for the intended uses by the licensee.

Scott:
On June 6, 2024, Hayes Enterprise exercised this right and excluded the song from the license that was granted by BMI to the Trump campaign. However, the campaign continued to use the song after that date, which the court viewed as likely copyright infringement. The court granted a partial preliminary injunction barring the Trump campaign from using that song at further events without a valid license.

Tara:
In granting the injunction, the court looked at the following factors: likelihood of success on the merits of the copyright claim, irreparable harm to the copyright owners, balance of hardships between the parties, and also public interest. Interestingly, the court rejected the idea that irreparable harm is automatically presumed in copyright cases. The court cited the 2006 Supreme Court case of eBay Inc. Versus Merck Exchange LLC for the principle that irreparable harm is not to be presumed once a plaintiff establishes a prima facia case of copyright infringement. A plaintiff must prove that the suffered injury will be irreparable without an injunction. An injury is irreparable only if it cannot be undone through monetary remedies, is how the court phrased it.

Scott:
Yeah, and here the court found that continued use of the song could cause irreparable harm due to the unwanted association with the campaign.

Tara:
Correct.

Scott:
Now, the court found that stopping future uses of the song wouldn’t significantly impact the campaign’s political speech rights. It noted that upholding copyright protections serve the public interest while also acknowledging the importance of political expression. The court found no evidence to suggest that the inability to play the song in the future would inhibit the Trump campaign’s political speech, especially considering that the defendants, the Trump campaign, submitted a declaration stating that they do not intend to use the song at future public events while the litigation is pending.

Tara:
But here’s an interesting plot twist. As part of the motion, Hayes enterprises asked the court to take down any videos that were posted without a license that that contained the song. The Trump campaign argued that the use of the song was fair use. While not ruling on the fair use defense, the court denied the request to take down the videos of past events that used the song. The court found that for now, the risk of harm from the videos of past events remaining online does not pose the same imminent risk as future uses of the song in future campaign events. While plaintiffs showed irreparable harm for the future use of the song, they did not make this showing for the videos of past uses.

Scott:
Now, this case highlights several interesting legal points. The first is a reminder that political campaigns need to be careful about music licensing, even if they have a blanket license.

Tara:
We didn’t discuss that portion of the order that addressed Hayes ownership of the song. The Trump organization claimed that Hayes didn’t own right rights in the song and therefore had no right to object to its use. However, the court found that Hayes enterprises had terminated Universal Music Publishing and Warner Chapel’s ownership of the song back in 2022 and regained an ownership interest in the song. The complex ownership history of this song showcases the importance of termination rights in copyright law, which allow creators or their heirs to reclaim rights after a certain period of Had Hayes enterprises not recaptured ownership of a portion of the song, it may not have had the ability to object to the use by the Trump campaign.

Scott:
Let me add on to that, Tara. So way back when, when I used to be a music lawyer, and we were negotiating either record label deals or publishing deals because the rights that would be obtained by either the record label or the publisher were really broad and allowed for the exploitation of either the sound recording or the publishing rights very, very broadly. There was a limited ability to negotiate for the right to exclude certain uses, certain uses in political campaigns or the use in personal hygiene commercials, et cetera. In the entertainment industry, we’re used to that standard list of terrible excluded uses that you normally see. But that’s an important point that I want to talk about here, at least note, is that remembering to negotiate for that right, because if Hayes hadn’t recaptured his publishing rights, the only thing they would have to rely on is that carve out, that right to exclude that type of use in their publishing deal. And then if they had that, they would then enforce that right with the publisher who then would enforce the opt out right with BMI. Lastly, this case is a good reminder that in copyright cases, plaintiffs need to prove irreparable harm for a preliminary injunction.

Scott:
This case is far from over. There still remains an open issue about the past use of the song in the videos and whether that use constitutes fair use. There was a very recent ruling against the Donald Trump campaign for a similar use of music in Trump campaign assets where the court did not find fair use, and we’re going to cover that in another episode. But I think what happened in that case, you’re probably going to see that happen here. But we’re going to track this case, and we’re going to report back when there’s a further event by the court. Tara, thanks for joining me today. I appreciate having you on as always.

Tara:
Absolutely. This is an interesting topic to talk about with you. Thanks, Scott.

Scott:
Well, that’s all for today’s episode of The Briefing. I’d like to thank Tara Sattler for joining us today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review and share this episode with your friends and colleagues. And if you have any questions about the topics we’ve covered today, please leave us a comment.