Don't Bet on Neil Young Beating Donald Trump in Court Just Yet

Here are the reasons why Young might wish to back down against the newest Republican presidential candidate.
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It's election season again, meaning the time has come for the war of words between Republican candidates and liberal musicians who don't want their songs being used on the campaign trail.

The latest kerfuffle involves Neil Young, who is standing up to Donald Trump over the use of "Rockin' in the Free World" at The Apprentice star's big announcement on Tuesday. The songwriter says that Trump was not authorized to use the song.

There isn't any indication yet that Young is ready to go to court against Trump, but if the songwriter did sue, it would be a mistake to presume him as the favorite. We'll make this assessment even though we've been skeptical about Trump's past legal endeavors including a libel lawsuit over the assertion that he isn't really a billionaire or a breach-of-contract lawsuit when comedian Bill Maher failed to give him $5 million for proving not to be the spawn of his mother having sex with orangutan.

Contrary to much of the reporting out there, this is a lawsuit that Trump can certainly win.

Much of the skepticism that he can't derives from the many times that musicians have previously stood up to Republican candidates and gotten their way. The list is extensive. In 2008, the McCain-Palin ticket was hit with legal complaints from Jackson Browne, Jon Bon Jovi, Heart, Foo Fighters, Van Halen, John Mellencamp and others. In 2012, Mitt Romney heard from rapper K’naan; Michele Bachmann received a nasty lawyer letter from Tom Petty; and Newt Gingrich was sued by Survivor guitarist Frankie Sullivan for playing “Eye of the Tiger.”

Most of the angry letters went nowhere, but the few times politicians did wind up in court over music, the disputes didn't get far before the politicians backed down. When he was a senatorial candidate, Charlie Crist agreed to make an embarrassing apology to Talking Heads frontman David Byrne. And the lawsuit against Gingrich settled too, adding to the conventional wisdom that politicians need authorization directly from musicians.

As a result, the performance rights organization The American Society of Composers, Authors and Publishers (ASCAP) has put out a document titled "Using Music in Political Campaigns: What You Should Know," which warns candidates that a performance license might not cover all claims by a musician.

However, reporters are now misreading this document, adding to misconceptions about the law. For example, Rolling Stone today came out with a story that stated that according to the ASCAP document, "for a song to be used properly, 'the campaign will need to contact the song's publisher and possibly the artist's record label to negotiate the appropriate licenses with them.'"

NPR then translated Rolling Stone's report as being "ASCAP's rules are different for using music in a political message; they require a campaign to reach out to the song's owners."

The problem with such assessments is that ASCAP was referring to use of a song in a campaign commercial, which implicates synchronization rights (matching a song composition with audio-visuals), rather than music used at a campaign rally. Nevertheless, ASCAP does warn that artists could sue for songs played at campaign events on causes of action that include right of publicity, trademark dilution or false endorsement under the Lanham Act.

But that's not to say that a musician would actually prevail in a lawsuit asserting such claims.

Again, almost all of the complaints have not gotten very far in court. The legal process is slow — and when the Newt Gingriches of this world can't muster enough votes, they drop out, leaving the politicians very little incentive to actually see a case to judgment.

There has been one case between a candidate and a politician that did result in a judge's opinion. In 2010, Don Henley prevailed over California senatorial candidate Chuck DeVore over use of his music. But in this particular case, DeVore took Henley's music and wrote new satirical lyrics for a campaign ad. The judge decided this wasn't a fair use of copyright.

Trump actually did have the right to publicly perform "Rockin' in the Free World." His campaign manager told Fox that it was issued a license from ASCAP (which also offers blanket licenses to restaurants and bars and passes along income that's important to songwriters like Young). That likely settles the copyright claims, but how about right of publicity, trademark dilution and false endorsement?

While Henley beat DeVore, he wasn't entirely successful. Read the summary judgment ruling closely and you'll see that the judge rejected the songwriter's Lanham Act claims. Yes, the facts of the case don't quite match up to Trump's use of Young's song, but there's enough language expressing doubt over consumer confusion to give politicians some optimism about heading into court with a musician. (Moreover, Trump's speech happened in New York, where publicity rights aren't particularly generous, and further, a judge would likely be asked to determine whether such rights protecting Young's name and image are preempted by federal copyright law.)

And even if his case made it to trial, Young would still probably have to do some sort of survey to show people really do mistakenly believe he's endorsed or approved Trump by choice of the candidate's song. By now, though, there's been plenty of reports of musicians objecting that are object lessons that a candidate's use of a song doesn't mean endorsement. So really, how many people are truly confused?

After Trump's rally blared "Rockin' in the Free World," Young's former Crosby, Stills, Nash & Young bandmate David Crosby tweeted that "Trump has picked a fight with the wrong guy." But maybe Crosby has this backwards. Trump has proven himself litigious over the years, and whether he's a billionaire or just a multi-millionaire, he's got plenty of dough to see a court battle to conclusion even after losing a bid for the White House. So does Young really want to be the guy that ruins the perception of legal advantage for every other musician?

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