The Republican National Committee has responded to a lawsuit filed by the Isaac Hayes estate, insisting that the performance of his song ‘Hold On, I’m Coming’ at the recent Republican National Convention was properly licensed, meaning claims of copyright infringement are invalid.
It also accuses the estate of deliberately going legal as the campaign for this year’s US presidential election reaches its peak. The estate has been aware that former President Donald Trump has played ‘Hold On, I’m Coming’ at his events since 2020, but, it says, “waited until the home stretch of the presidential election to seek an injunction” to “disproportionately harm the RNC by interfering with its political speech during the crucial last leg of a presidential election”.
The Hayes estate sued Donald Trump’s election campaign and various entities which have hosted Trump rallies and speeches, including the RNC. A spokesperson for Trump immediately stated that his use of ‘Hold On, I’m Coming’, co-written by Hayes and David Porter, was covered by a licence from collecting society BMI, which represents both musicians The RNC presents the same argument in its formal filing in response to the estate’s lawsuit.
BMI has a special licence for political entities which songwriters can opt out of. We knew that the Hayes estate had excluded ‘Hold On, I’m Coming’ from the licence, but the RNC says that didn’t happen until mid-August, which means - when the song was performed at its convention in July - the BMI licence was still valid.
It was on 14 Aug, says the RNC, that “BMI sent a letter to ‘exclude’ from the licence all musical compositions written and copyrighted by Isaac Hayes” effective “from this date forward”. BMI’s letter, the lawsuit explains, was prompted by a request from Universal Music Publishing “as publisher of the musical works written and copyrighted by Isaac Hayes”.
The estate’s lawsuit listed various uses of ‘Hold On, I’m Coming’ at Trump events and linked to where footage of those events is available online.
The online videos of the Trump events, and his use of Haye’s song, raise their own copyright questions. Even if a BMI licence covered performances of ‘Hold On, I’m Coming’ at live events, was the inclusion of the song in the videos also licensed? If not, that in itself might justify a claim of copyright infringement.
The RNC deals with this in its filing, providing three reasons why online footage of its convention cannot be grounds for copyright infringement.
First, when referencing the use of Haye’s song at the convention, the estate actually linked to CBS News coverage on YouTube. Therefore, that video, and any rights exploited in it, is the responsibility of CBS.
Second, even if the video belonged to the RNC directly, its BMI licence also provides “the right to broadcast, telecast or otherwise transmit” a performance of Haye’s song “via the internet”. Which would presumably cover any livestream of the event.
And third, even if it didn’t, the RNC reckons that footage of its convention is basically news reporting and therefore constitutes fair use under American copyright law.
The legal filing states, “The videos include the song as background music for a few minutes of a six hour video documenting an important historical event, which constitutes fair use of the song that could not possibly harm the market for or value of the song”.
Technically the RNC is accused of contributory infringement by the estate, while the Trump campaign is being sued for direct infringement. Nevertheless, it seems likely that Team Trump will use more or less the same arguments when seeking to get the Hayes estate’s lawsuit and its injunction request dismissed.