A US judge has issued an injunction ordering the Donald Trump election campaign to stop using the Isaac Hayes written song ‘Hold On, I'm Coming’ at his rallies in response to legal action filed by the Hayes estate. It comes as Hayes’ son, Isaac Hayes III, disputed claims by the Trump campaign that even recent use of the song was covered by a licence from collecting society BMI.
It seems likely that the Trump campaign weren’t planning on using the song anymore anyway. Despite initially opposing the injunction, Trump attorney Ronald Coleman didn’t seem too bothered that it had been issued, telling reporters, “the campaign has no interest in annoying or hurting anyone. And if the Hayes family feels it hurts or annoys them, that’s fine, we’re not going to force the issue”.
The Hayes estate accuses the Trump campaign, and various other organisations that have hosted Trump speeches, of copyright infringement for playing the Sam & Dave version of ‘Hold On, I'm Coming’ at their events. Legal reps for the campaign filed a formal response to the estate’s lawsuit at the weekend, basically echoing everything that had been said in an earlier filing from co-defendant the Republican National Committee.
Both Trump and the RNC insist that they were licensed to use ‘Hold On, I'm Coming’ at their events via their BMI licences, with the US collecting society representing both Hayes and his co-writer on the song, David Porter. The song has now been excluded from that licence, however they claim that only happened last month and, therefore, prior to that use of the track was legit.
Hayes’ son Isaac Hayes III has responded to that claim on Twitter. Although the estate only formally excluded ‘Hold On, I'm Coming’ from the BMI political entity licence last month, Porter excluded it in June. Hayes III has posted a 4 Jun letter from BMI to the Trump campaign confirming that the song had been excluded at the request of Porter.
Which means that change to the licence preceded the big Republican National Convention in July, where the song was performed.
The specifics of the BMI exclusions - and whether Trump and his campaign are liable for copyright infringement - will be considered another day. The immediate concern for the court was the Hayes estate’s request for an injunction. According to CNN, Judge Thrash Jr declared yesterday, “I do order Trump and his campaign to not use the song without proper licence”.
However, the judge declined to order the Trump campaign to remove videos of previous events that feature the song, something Trump lawyer Coleman welcomed.
Although in its filing the RNC argued that its BMI licence covered the streaming of its events, it also argued that posting footage online of Trump rallies where ‘Hold On, I'm Coming’ was played would constitute fair use of the song under US copyright law, so no licence is required.
The Trump campaign repeats this argument in its filing. A claim for copyright infringement “based on the presence of the song in campaign videos, essentially as background or incidental music” would likely fail, it said, “because they constitute fair use, and cannot possibly have an effect on the market value of the song”.