Neil Young has made good on his threat to file a lawsuit against the Donald Trump campaign over its continued — and he contends legally unauthorized — use of his music for political purposes. Among the songs at issue in the suit is “Rockin’ in the Free World,” a long-contentious staple of the president’s campaign rallies going back five years.
The suit for copyright infringement was filed with the United States District Court in the southern district of New York state by Young and two attorneys, Ivan Saperstein in New York and Robert S. Besser in California. A copy of the filing was posted on Young’s website, Neil Young Archives, Tuesday morning.
“This complaint is not intended to disrespect the rights of opinions of American citizens, who are free to support the candidate of their choosing,” the lawsuit begins. However, it continues, Young “in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate.”
Citing not just “Rockin’ in the Free World” but also a more obscure song from the 2003 “Greendale” album, “Devil’s Sidewalk,” that was part of the playlist at Trump’s controversial June rally in Tulsa, the suit contends that the campaign did and does not “have a license of Plaintiff’s permission to play the two songs at any public political event.”
The filing goes on to say that Young “has continuously and publicly objected to the use by the campaign of the songs. The first such objection was in connection with Trump’s playing of ‘Rockin’ in the Free World’ at his June 16, 2015 announcement that he was running for president. In response, the campaign issued a statement stating that it had procured a license to do so, thus acknowledging that it knew a license is required.”
Young’s filing does not go into any detail about what licenses are required. Campaigns that have continued to use songs at political events in spite of the artists’ protests have long contended that any such usage is not up to the songwriters and is covered by a blanket public performance license held by host venues.
However, the issue of a separate requirement for political events came up in June when the Rolling Stones announced that they were working with both BMI and ASCAP to persuade the Trump campaign that its ongoing use of “You Can’t Always Get What You Want” as Trump’s post-speech walk-off music was in violation of the group’s rights. The Stones and the two PROS argued that the president’s campaign has a Political Entities License, which allows for public performance of millions of songs — any of which can be excluded if the artist or publisher objects to its appropriation for political purposes. The Stones and their reps said their songs were no longer included as part of the license.
Young has not explicitly said whether he also has excluded his songs from a Political Entities License and whether that is explicitly the license he contends Trump’s campaign does not hold to play his material.
The rocker had said in late July that he was considering suing the Trump campaign after long ruling it out as an option. “I am reconsidering,” he wrote then on his website. “Imagine what it feels like to hear ‘Rockin’ in the Free World’ after this President speaks, like it is his theme song. I did not write it for that.” He cited Trump’s call for a military response to the Black Lives Matter protests as especially upsetting.
The newly filed lawsuit says that as a result of the campaign’s copyright infringement, Young has “suffered and continues to suffer great injury which cannot be accurately computed,” and that unless the court restrains the campaign from further use, the rocker “will suffer irreparable injury…. Plaintiff is entitled to an award of statutory damages in the maximum amount allowed for willful copyright infringement.” The amount being asked for is between $750 and $150,000 for each infringement, along with the cost of the suit and attorneys’ fees.
One prominent intellectual property attorney has mixed feelings about Young’s lawsuit, weighing the morality of the issue versus the legal merits.
“Emotionally, morally and from the perspective of doing the right thing, I side with Neil,” says Lawrence Iser, managing partner of Kinsella Weitzman Iser Kump & Aldisert LLP. “No campaign should use an artist’s song without permission because it undeniably constitutes at least an implied endorsement of the candidate by the artist. But it will be hugely expensive for Neil to spar in court with the deep-pocketed Trump campaign. There’s a huge factual issue of whether ASCAP did in fact exclude Neil’s songs from the Trump license, as well as the legal issue of whether ASCAP can legally exclude the songs in light of the antitrust consent decree, entered into in the 1940s, where it agreed that it must provide licenses to the songs in its catalogs upon request. There are very important issues of copyright, antitrust and artists’ rights at play.”
Trump’s most recent use of Young songs occurred at a July 4 rally at Mount Rushmore. In that case, “Rockin’ in the Free World” was used, along with a song not addressed in the lawsuit, “Like a Hurricane.” Young afterward retweeted a clip of “Like a Hurricane” being played as attendees filed in and wrote, “I stand in solidarity with the Lakota Sioux & this is NOT ok with me.”
In an open letter to Trump in February, Young wrote, “You are a disgrace to my country. Your mindless destruction of our shared natural resources, our environment, and our relationships with friends around the world is unforgivable.… Our first black president was a better man than you are.” He added that “Rockin’ in the Free World” “is not a song you can trot out at one of your rallies… Every time ‘Rockin’ in the Free World’ or one of my songs is played at your rallies, I hope you hear my voice. Remember it is the voice of a tax-paying U.S. citizen who does not support you. Me.”
Although the president’s defenders have often derided Young as a Canadian outsider when these issues have arisen, Young announced in January that he had officially become an American citizen after decades of living in California, in part because of his desire to vote against Trump, whom he has called “a disgrace to our country.”
Besides Young and the Stones, other artists who have publicly objected to the Trump campaign using their music include the Tom Petty estate, R.E.M., Queen, Pharrell Williams, Rihanna, Panic! at the Disco, Aerosmith, Adele and Elton John.
One week ago, an open letter was sent to both Republican and Democratic leaders from dozens of artists, demanding that their permission be obtained before political use of their music. Young did not add his name to that letter, whose signatories included Mick Jagger, Keith Richards, Elton John, R.E.M., Lorde, Lionel Richie, Green Day, Sia, Panic! at the Disco, Sheryl Crow, T Bone Burnett, Jason Isbell, Elvis Costello, Rosanne Cash, Courtney Love and the Kurt Cobain estate.
Young’s “Rockin’ in the Free World” and the Stones’ “You Can’t Always Get What You Want” are just two of many examples Variety surveyed of Trump and his campaign using songs whose messages may ultimately not be the ones he should want to send out, although, clearly, lyrical subtleties tend not to weigh heavy in political playlist considerations. Although not open for quite as egregious a misinterpretation as the one Ronald Reagan mistakenly gave Bruce Springsteen’s “Born in the USA,” “Rockin’ in the World” has lyrics that rage against George H.W. Bush’s politics and messaging specifically, if not conservatism generally.