Trump Goes A Rockin’: Neil Young Comes A Knockin’

by Buchanan Ingersoll & Rooney PC
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Donald Trump, the New York real estate mogul and self-proclaimed business genius, just kicked off his campaign for the Republican Presidential nomination at Trump Tower in Manhattan to the tune of Neil Young’s Rockin’ In The Free World.

Risky business, Mr. Trump. Just recently, musical artists Axwell and Ingrosso asked another GOP candidate, Florida Senator Marco Rubio, to stop using their song Something New on his campaign stops.  During the last presidential election, Mitt Romney was asked not to use Silversun Pickup’s Panic Switch.  The Talking Heads song, Road to Nowhere, was used without permission by Democrat Charlie Crist in his Florida Senate campaign in attack ads against Republican Marco Rubio in 2010.  The group’s leader, David Byrne, filed a $1 million lawsuit, and as part of a settlement Crist had to publicly apologize for using the song.

In fact, Neil Young objected to the use of his song, and declared that Trump did not have permission to use his song. In a statement, Young’s representatives said: “Donald Trump was not authorized to use Rockin’ In The Free World in his presidential candidacy announcement.  Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States of America.”

In response to the statement, Trump’s campaign manager stated that the campaign had obtained a license from ASCAP to perform the song.  ASCAP (along with BMI and SESAC) is a music public performance rights society.  It represents over 525,000 songwriters, composers and music publishers.  ASCAP grants licenses (on behalf of its publisher and songwriter members who authorize it to do so) for the public performance of musical compositions. ASCAP does NOT license the public performance of the actual recordings of those compositions, whose rights normally are owned by the record company or recording artist, not the music publisher.  However, for “analog” public performances of a sound recording, such as that employed by Trump in this case, (as opposed to the digital public performance of a song such as via Internet radio or a digital music subscription service like SiriusXM radio), copyright law does not include a public performance right. In this case, if Trump’s campaign did have such a public performance license from ASCAP, it complied with copyright law.

So, does Neil Young have a legal right to stop Trump from using his song as the musical background for his campaign? Maybe. Copyright claims aside, Young might assert his right of publicity or even a claim of unfair competition.

As I wrote in my last blawg post, the “right of publicity” (the right to control the commercial exploitation of one’s name, likeness, image and persona) is often overlooked as a legal right in situations like this one.  The law of “unfair competition,” similar to trademark law, prohibits the creation of a false designation of sponsorship, affiliation or other connection.  Laws prohibiting such activities exist under both Federal law (in Section 43(a) of the Lanham Act) and under various state laws.  Both laws can be used to prevent false associations between an artist and a cause (or a candidate).

Asserting a right of publicity claim even where copyrights have been licensed properly has been done with success in the past.  In two landmark cases, singers Bette Midler and Tom Waits brought lawsuits to prevent the use of “sound-alikes” in advertising to which they objected.  In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1989) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) the singers declined to lend their distinctive voices to advertising jingles for two prominent manufacturers. Both Ford and Frito-Lay had obtained the appropriate copyright licenses to record the songs.  When Midler and Waits refused to sing for the ads, both Ford and Frito-Lay took the same approach:  they simply found sound-alike performers who could duplicate the vocal timbre and styling of Bette Midler and Tom Waits.  Midler and Waits both won their lawsuits based on right of publicity claims and were awarded substantial damages ($400,000 for Midler and $2,500,000 for Waits).

Another landmark case did not involve an impersonation of a voice of a celebrity, but instead an “impersonation” (in the form of a cartoon drawing, no less) of the look of a celebrity.  In the case, White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), Vanna White, the well-known letter turner on Wheel of Fortune, sued Samsung over an advertisement it ran.  In the ad, Samsung utilized an image of a cartoon robot dressed in a long gown, wearing a wig and elegant jewelry and posed next to a wall of letters (resembling the Wheel of Fortune set). The court held that Samsung had violated Ms. White’s right of publicity because, in the court’s view, Samsung had deliberately pawned the image and popularity of White and because White was readily identifiable from the context of the use. She was awarded $403,000.  While the White case is characterized as a right of publicity case, in many ways the court was swayed by the “false association” arguments that go to the essence of an unfair competition claim.

While Neil Young is still a Canadian citizen, he is a long time resident of Northern California.  California has a robust right of publicity law that could be cited in this case, since the essence of Young’s objection is that he does not want to be associated with the Trump campaign.  He also might claim that the use of his music in this way implies sponsorship or endorsement of the candidate, an act of unfair competition.

In this case, the right of publicity and the law of unfair competition might be enough to trump Trump.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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