The estate of Isaac Hayes, and an associated company, Isaac Hayes Enterprises, have now filed a lawsuit against Donald Trump and his election campaign over the use of the song ‘Hold On, I’m Comin’ at numerous events where the former US President has spoken.
The court action follows a cease and desist letter earlier this month which demanded $3 million in licensing fees for past uses of the 1966 Sam & Dave track, which Hayes co-wrote with David Porter.
“Mr Trump and the Trump campaign began publicly performing the copyrighted work in 2020 as ‘outro’ music for appearances and campaign events”, says the lawsuit which has been filed with the Georgia courts. A cease and desist letter was initially sent by both Universal Music and Warner Chappell the same year, it adds, but Trump continued to use the song without a licence.
It wasn't until earlier this month, “four years and an estimated 150 individual infringements after Mr Trump began his unlawful use of the copyrighted song”, that a representative for the Trump campaign contacted Isaac Hayes Enterprises, the lawsuit claims. However, no licence has been issued and the Hayes estate “now brings this action against defendants for copyright infringement”.
As expected, a spokesperson for the Trump campaign says they believe their use of ‘Hold On, I’m Comin’ at political rallies is covered by a licence from collecting society BMI. Speaking to Law360, the spokesperson sought to play down the significance of a musician suing the campaign, adding, “This happens to almost every Republican candidate, every presidential campaign, at least that I've been aware of in my 20 plus years of doing this stuff”.
BMI has a special blanket licence for political entities like the Trump campaign. That covers the vast majority of the BMI repertoire, but not all of it. According to official guidance from the society, it includes “a provision that permits BMI to exclude a musical work(s) from the licence should we receive an objection from a songwriter or publisher regarding its use by the licensee”. The guidance adds, “BMI will notify the licensee that the particular musical work has been removed from license and is no longer authorised by BMI to perform the musical work”.
The lawsuit from Isaac Hayes Enterprises doesn’t mention BMI, which is interesting, given both Hayes and Porter are affiliated to the performing rights organisation, and it’s no secret that the Trump campaign has a public performance licence from the collecting society. That doesn't necessarily mean the campaign is licensed to play ‘Hold On, I’m Comin’ at its events - because of the exclusions provision - but it’s odd that the lawsuit doesn’t go into more detail about those technicalities.
It’s not clear if the Hayes estate has formally excluded ‘Hold On, I’m Comin’ from the BMI licence issued to the Trump campaign. If it did, in theory the campaign should be aware of that fact, given BMI’s commitment to notify licensees of exclusions. However, it would seem odd for the estate not to explicitly reference the fact the work is excluded in its lawsuit, given using the song when that exclusion was in place would make the case for copyright infringement much clearer.
That said, the licensing of music for political events is notoriously complicated, with rules varying from country to country, for songs versus recordings, and depending on whether or not an event is livestreamed or recorded and then posted online.
The performance of music at an event itself will usually be covered by the blanket licences issued to the venue hosting the event, or the political party or campaign. These licences are issued by the music industry’s collecting societies, including BMI.
Those licences will only not apply where there is a specific restriction, such as the BMI provision that allows works to be excluded from its political entities licence. In the UK, the combined public performance licence issued by PPL and PRS specifically excludes keynote speeches at political events, such as the annual conferences staged by the big political parties, although any other music played at those events would be covered.
In the US, if a political campaign plays a recording, no licence is required for the sound recording itself, because US law doesn’t include a public performance right as part of the sound recording copyright. However, a licence is still required covering the song that is contained in the recording.
Nevertheless, the lawsuit filed by Isaac Hayes Enterprises accuses the Trump campaign of infringing the copyright in both the song and the Sam & Dave recording of that song.
Things potentially become more straightforward for creators and copyright owners when a political rally is live-streamed or recorded and posted online. At that point other elements of the copyright are being exploited, which also require licensing, and that usage often won't be covered by a blanket licence from a collecting society.
The Isaac Hayes Enterprises lawsuit runs through an assortment of specific uses of ‘Hold On, I'm Comin’ at Trump events this year hosted by the Republican National Committee, Turning Point, the National Rifle Association, the American Conservative Union and BTC Inc, all of which are also accused of copyright infringement.
For every event listed, the lawsuit points to a place online where there is a video of the event in question, posted to platforms like YouTube, Rumble and Trump’s own social media platform Truth Social. It maybe that the use of the recording and song in those videos creates a stronger case for copyright infringement.
Lots of artists have criticised Trump for using their music at his events without permission over the years, of course, with some sending cease and desist letters, and threatening legal action.
Copyright infringement is often the core complaint, although other legal claims have been made, usually on the basis that the use of music implies an association between an artist and the often controversial former President. The Isaac Hayes Enterprises lawsuit is no different. It also accuses Trump of infringing its trademarks and the late musician’s publicity rights.
The lawsuit seeks damages and an injunction prohibiting Trump and all the other defendants from using ‘Hold On, I’m Comin’ without a licence.
UPDATE 20 Aug 2024, 7.00pm:
A spokesperson for BMI has told CMU, “musical works are removed per each individual campaign’s licence when we receive an objection about a specific campaign’s use of a song(s). ‘Hold On, I’m Comin’ has been removed from the Trump campaign’s political entities licence, and we’ve also executed additional removal requests from other campaign licences per the Hayes Estate”. So the Trump campaign is not currently licensed to use the song under its BMI licence.