The White Stripes have sued Donald Trump and his election campaign over his use of ‘Seven Nation Army’ in a video that the campaign posted to social media at the end of August. Use of the track in the video without permission was a “flagrant misappropriation of the musical composition and recording”, which are, says the duo’s legal filing, “among the most well-known and influential musical works of all time”.
Trump, continues the lawsuit, “as a self-professed sophisticated and successful businessman with decades-long experience in the entertainment industry”, should have realised that the use of ‘Seven Nation Army’ in the video “was unauthorised, and, therefore, violated [the band’s] rights under the Copyright Act”.
Obviously this is not the first time that Trump has been on the receiving end of a lawsuit about music used as part of his campaign. Nor is it the first time he’s had a run-in with The White Stripes. Back in 2016, during his first run for President, he used ‘Seven Nation Army’ in another campaign video, which the band criticised on social media at the time.
This time round, the refreshed association with Trump caused by last month’s video is, say Jack and Meg White, “even more offensive” because they “vehemently oppose the policies adopted and actions taken by Trump when he was President and those he has proposed for the second term he seeks”.
What’s different about this lawsuit compared to the one recently filed by the Isaac Hayes estate is that this case is specifically focused on the use of music in a video, rather than at a live campaign event.
From a copyright perspective, there’s a notable difference between music being synchronised into a campaign video and music being played at rallies and events, even if footage of those rallies and events featuring the music is posted online.
With events, Trump and his campaign can usually rely on blanket licences from the music industry’s collecting societies like ASCAP and BMI. Artists can exclude their songs from the specific licences those societies issue to political entities, and some have, but until that happens it can be hard for artists to take legal action.
The Isaac Hayes estate sued over Trump’s past use of ‘Hold On, I'm Coming’ at his rallies. The Trump campaign argues that the estate only excluded that song from its BMI licence last month, so past use was licensed. Hayes’ son, Isaac Hayes III, has since stated that the song’s co-writer David Porter excluded the work in June before Trump used it at July’s Republican National Convention, which will presumably be a focus if that case gets to court.
When footage of events featuring music is posted to social media, other elements of the copyright are arguably exploited which could need licensing.
However, the Republican National Committee, a co-defendant in the Hayes estate case, claims its BMI licence also covers streams of its events. Plus, because footage of Trump rallies is arguably news reporting, use of music in that footage is likely ‘fair use’ under American copyright law, meaning no permission is required. Both the RNC and the Trump campaign have made that argument in their responses to the Hayes litigation.
When a track is specifically synchronised into a video, as with Trump’s use of ‘Seven Nation Army’, that seems like a more straightforward synchronisation, which would need licences from the label that controls the recording and the publisher or publishers that control the song.
According to The White Stripes’ lawsuit, the new campaign video, posted to X and Instagram, and possibly other platforms, included “footage of Trump boarding an aircraft for campaign stops in Michigan and Wisconsin with the riff from ‘Seven Nation Army’ playing for the duration of the video with no other sound whatsoever”.
The Trump campaign’s use of ‘Seven Nation Army’, says the lawsuit, is for the purpose of “enhancing Trump’s public image” and “infusing energy into and excitement around” the campaign, including upcoming visits to Michigan and Wisconsin. The ultimate objective, the band add, was “attracting engagement, financial and other support from current and prospective supporters”.
These aims were achieved, the lawsuit states, “resulting in at least 65,000 views and 700 reposts in a matter of just a few hours after first appearing on X”. If the case proceeds to a discovery phase, the band will seek to “determine the amount of financial contributions that are attributable to the infringing Trump videos”.
It will be interesting to see what defences the Trump campaign roll out this time.