UPDATE—September 13, 2024—After four years of litigation, Southern District of New York Judge John G. Koeltl has granted summary judgment in favor of musician Eddy Grant, finding Donald Trump and his 2020 presidential campaign liable for copyright infringement. Check out the story and read the court’s opinion here.
UPDATE—September 11, 2024—Judge Thrash has issued his written opinion and order granting a preliminary injunction in favor of Isaac Hayes Enterprises against Donald Trump over the future use of the song “Hold On, I’m Coming” at campaign rallies. Read the opinion here.
This isn’t the first time Trump’s campaign has been hit with a copyright infringement lawsuit over the unauthorized use of music. That distinction belongs to Neil Young, who sued Trump for using “Rockin’ in the Free World” at 2020 rallies. While Young’s case was quickly resolved, the legal battles taking center stage this week have been far more contentious, setting the stage for two court decisions that may shed light on the legal boundaries of using popular music in political campaigns.
Tuesday’s Hearing: “Hold On, I’m Coming” and the Hayes Estate
The first of the two cases on the docket this week involves Isaac Hayes Enterprises and the Estate of Isaac Hayes, which filed a lawsuit against Trump and his 2024 campaign over the use of the 1966 soul classic “Hold On, I’m Coming” at the Republican National Convention and other campaign rallies. The song, famously performed by Sam & Dave, was co-written by Isaac Hayes and Dave Porter, and it remains one of the most recognizable tracks of the era.
UPDATE—September 3, 2024—Northern District of Georgia Judge Thomas W. Thrash, Jr. has temporarily halted the Trump Campaign’s use of “Hold On, I’m Coming”:
The Hayes lawsuit names Trump and his campaign, along with the Republican National Committee, Turning Point USA, the NRA, and several other conservative organizations. It claims that the defendants’ unauthorized use not only infringes the copyright in “Hold On, I’m Coming,” but also gives rise to a false association that tarnishes the legacy of Isaac Hayes, who passed away in 2008.
Isaac Hayes (1942-2008) (1971 Press Photo)
The estate seeks a preliminary injunction to immediately stop the continued use of the song, which the plaintiffs assert could lead to lasting damage to the brand and legacy that Hayes built over his career.
The Case for An Injunction
Among the evidence submitted by the plaintiffs in support of a preliminary injunction is a letter from Broadcast Music, Inc. (BMI), dated June 5, 2024, putting the Trump Campaign on notice that any existing political licenses to use the song had been terminated. (Performing rights organizations like ASCAP and BMI have an exclusion that permits rightsholders to withhold specific songs from blanket licenses granted to political campaigns they oppose.) The plaintiffs argue that the Trump campaign continued to use the song after the license was revoked, citing multiple instances of public performance documented on social media and video-sharing platforms.
BMI letter to Trump Campaign, June 5, 2024
The plaintiffs also point to what they describe as a pattern of behavior by the Trump campaign, which they claim has repeatedly used copyrighted music without proper authorization. They argue that this disregard for intellectual property rights, especially in the context of high-profile political events, could set a dangerous precedent and should be addressed by the court.
An Attack on Ownership and Fair Use
In a flurry of legal filings over the long Labor Day weekend, the defendants are pushing back. The RNC’s opposition to the Hayes estate’s motion for preliminary injunction (read here) first challenges the plaintiffs’ copyright ownership, pointing to a Copyright Office record from March 2024, which they contend shows that Isaac Hayes Enterprises assigned the copyright in the composition to a fund owned by Primary Wave Music. But according to a letter submitted by the plaintiffs in reply yesterday, Primary Wave only acquired a 50% interest in “Hold On,” and has agreed that the Hayes estate may prosecute the claim with respect to its retained interest in the composition.
Trump’s team also asserts that even if the plaintiffs could prove ownership, their case would still fail because the campaign’s use of the song falls under copyright’s fair use defense. They argue that the song was used as incidental background music in campaign events, as opposed to being used for “its own entertainment value,” which they contend does not significantly impact the market value of the song. The defendants also emphasize what they characterize as the non-commercial purpose for which the song was used. The plaintiffs disagree, noting that the unauthorized use of the song in a high-profile and polarizing political campaign is far from incidental, and that the song was chosen precisely by the defendants to co-opt its message.
Sam Moore’s Surprising Role
Perhaps the most surprising development in the case is the involvement of Sam Moore, one half of the legendary duo Sam & Dave, who originally recorded “Hold On, I’m Coming.” In a sworn declaration (read here), Moore, now 88 years old, provided a detailed account of the song’s history and his role in its creation. Moore emphasized that while Isaac Hayes co-wrote the song, he says that it’s his own voice that the public associates with the track.
Sam Moore (2017), Photo by Gage Skidmore (CC BY-SA 3.0)
Moore’s declaration goes further, addressing the plaintiffs’ assertion that Hayes would not have approved of the song’s use in a Republican campaign. Moore, who described his long friendship with Hayes, recounted that both he and Hayes had performed at events for prominent Republican figures in the past, including for former Republican National Committee Chairman Lee Atwater. He suggested that the plaintiffs’ portrayal of Hayes’ political affiliations was misleading and that Hayes had no such objections to working with Republicans during his lifetime.
Moore also expressed concern that if the court grants the plaintiffs’ injunction, it could prevent him from performing “Hold On I’m Coming” at future Trump events, thereby impacting his own ability to continue profiting from the song. (I should note that in 2017, Moore performed “America the Beautiful” at a pre-inauguration concert for Trump.)
Friday’s Hearing: “Electric Avenue” and the Grant Case
UPDATE—September 6, 2024—Following oral arguments this morning, Southern District of New York Judge John G. Koeltl took the parties’ summary judgment motions “under advisement.” Stay tuned for updates.
The second case on the docket this week takes place in Manhattan on Friday, September 6. That’s when Trump’s legal team will rock on to Pearl Avenue (err, Street) to face British musician Eddy Grant, who sued Trump four years ago over an animated video tweeted from Trump’s Twitter account during the 2020 presidential campaign.
Eddy Grant, Photo by Stuart Sevastos, modifications by Austin512, CC BY-SA 2.0
The video, which depicted a high-speed “Trump Pence KAG 2020” train overtaking a slow-moving handcar labeled “Biden President: Your Hair Smells Terrific,” used 40 seconds of “Electric Avenue” as background music. The tweet garnered millions of views before it was eventually taken down. Grant alleges that this unauthorized use violated his copyrights in both the musical composition and the sound recording of “Electric Avenue.”
The complete “Trump Train” video, in all of its nonsensical glory.
In their motion for summary judgment (read here), Grant’s legal team argues that there is no genuine dispute over the facts: the Trump campaign used “Electric Avenue” without authorization, and emphasizes that the song’s chorus was played repeatedly throughout the video, making it instantly recognizable and central to the video’s appeal. According to Grant’s team, this unauthorized use not only infringed Grant’s copyrights but also damaged the market for licensing the song, particularly as Grant has never licensed “Electric Avenue” for political purposes.
The Registration Dispute
The Trump campaign has countered with a multi-pronged defense (read here). First, it argues that the sound recording of “Electric Avenue” was not properly registered when the song was first released. Trump’s lawyers assert that while Grant registered the sheet music for the song in 1983, he didn’t similarly protect the actual recording—the “master”—that’s been played at parties and nightclubs since its release.
This argument hinges on the distinction between the musical composition (the notes and lyrics) and the sound recording (the actual performance captured on tape). Trump’s legal team contends that because Grant allegedly failed to secure a copyright for the sound recording at the time of its release, there was no copyright for the campaign to infringe.
Grant disputes this characterization, pointing out that the sound recording was included in a 2001 compilation album, “Eddy Grant: The Greatest Hits,” which was properly registered with the U.S. Copyright Office. He argues that the sound recording copyright covers all 16 songs on the album, including “Electric Avenue.” The defense counters that the registration of the compilation doesn’t cover the underlying sound recording itself, as it had already been published when the registration was obtained. (While this issue doesn’t often arise, I should note that there is Southern District of New York authority supporting that the registration of a collective work satisfies the registration requirement for purposes of bringing an infringement action over any of the work’s constituent parts.)
Grant’s lawyers recently filed an expedited application with the Copyright Office to ensure that the sound recording copyright for “Electric Avenue” is protected, although the belated filing may limit Grant’s ability to obtain statutory damages and attorneys’ fees from Trump if the court were to find that the sound recording wasn’t previously protected.
The Fair Use Defense
Trump’s legal team has also asserted a fair use defense, arguing that the campaign video he tweeted didn’t share the same purpose as Grant’s original song, which was intended as a protest against social conditions. Instead, they say the video used the song to convey a satirical political message aimed at then-presidential candidate Joe Biden. Recognizing that the video didn’t alter the song’s content, the defendants contend that use of the song in a different context should qualify as fair use, particularly since the video didn’t serve a direct commercial purpose, such as fundraising.
Moreover, the Trump camp argues that Grant’s refusal to license “Electric Avenue” for political purposes weakens his claim that the video has harmed the market for the song. Since Grant has never been willing to license the song for political use, they argue, there was no established market to impair.
The court previously denied the Trump campaign’s motion to dismiss, ruling that the fair use defense was insufficient to dismiss the case at that early stage. However, Trump’s legal team now seeks to convince the court that, based on the evidence uncovered during discovery, the use of “Electric Avenue” falls under the fair use doctrine in light of the Supreme Court’s recent Warhol decision and the lack of any direct commercial exploitation.
The Bottom Line
As the courts prepare to weigh in, it will be interesting to see if they set any important precedents—whether by affirming the rights of copyright holders to control how their music is used in campaigns or by carving out more defined boundaries for fair use in the political sphere. While these decisions likely won’t prevent future disputes, hopefully they’ll contribute to the ongoing conversation about the proper balance between creative rights and freedom of expression in political discourse.
As always, I’d love to know what you think. Drop me a line in the comments below or @copyrightlately on social media.
