Lex Indicium

Neil Young’s Suit Illustrates Music Licensing Issues

August 6, 2020


On August 4, iconic guitarist Neil Young sued the Trump Campaign, claiming that Trump’s unauthorized use of his songs Rockin’ in the Free World and Devil’s Sidewalk at various rallies, including at the Tulsa rally on July 20, violated Young’s copyrights in those songs.  In filing his complaint, Young joins an elite crowd of artists who have complained about the purported unauthorized use of songs when the artist and the writer were not otherwise aligned politically.  Reagan, GW Bush, and McCain (among others) have all had to defend claims brought by, respectively, Bruce Springsteen, John Mellencamp, and Heart suggesting that use of their songs were unauthorized violations of their copyrights (and other rights) in those songs.

Fundamentally, Young claims that he owns the copyrights in the songs used by the campaign and the campaign used them without authorization.  Accordingly, he argues that he should be awarded an injunction against continued use, and damages for the prior violations.

These claims have a simple elegance and on their face.  But anyone who has dealt with music performance rights and licensing knows that there is almost nothing simple about those concepts.  Indeed, the world of music licensing is among the most byzantine and complex legally.  Young’s complaint provides an opportunity to shed some light on just one corner of the intricate system of music licensing.

Music Played In Public Places Must Be Licensed

First, while songwriters own copyrights in their works in the first instance, typically the licensing of pubic performance of their songs is offloaded to so-called “performance rights organizations” or “PROs.”   There are several PROs, the most famous being BMI, SESAC, and ASCAP.  Nearly every established artist (including Neil Young) signs on with a PRO to handle these license rights.

PROs have a great deal of power over the public performance of musical works.  In the U.S., every venue, restaurant, hotel, and living complex where people congregate in public spaces and listen to or are exposed to music (even if only from a TV) must have a performance right license from one or more of the PROs.  Although there are exceptions, typically such venues will obtain a “blanket license” to play/perform all of the music controlled by a particular PRO. This is because it is simply easier administratively to have a blanket license rather than track individual songs that might be played and obtain licenses individually.

One “Blanket License” Might Not Suffice

Importantly, each PRO has its own catalog of music and artists that it represents.  Just because a venue has a license with BMI, for example, that does not mean it is covered for the works controlled by ASCAP or any of the other PROs.  Accordingly, most venues will obtain licenses from multiple and potentially all the PROs to ensure that any song that is piped through the public space is authorized.

In the Neil Young example, it’s not exactly clear whether his claims relate to the use of the music at a specific location or venue.  Because most venues are likely covered by one or more PRO blanket licenses, it seems that at least some of the campaign’s uses could be defensible.

It’s also possible that Young’s complaints pertaining to the use of the music outside of licensed venues and/or that Young has retained control of the works.  BMI and ASCAP do have provisions in some of their agreements with artists that allow artists to exclude music licenses from political entities (like campaigns) if the artists object, but some argue that this carve-out would only apply to a so-called “traveling license” that a campaign might obtain in order to roll out to multiple, potentially unlicensed, locales.  The argument is that at a properly licensed venue, the venue’s blanket license “trumps” all.

Whatever the specifics, Young’s complaint illustrates the need for venues that play music to obtain licenses from PROs, if not directly from the artist.

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