Why Donald Trump Should Have Gotten Song Permission from The Rolling Stones (But Not Queen)

An ASCAP license covered much of what was played at the Republican National Convention. But maybe not everything.
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The Republican National Convention this year in Cleveland ended as it started — with complaints over supposedly unauthorized use of music. Both "Happy Together" by The Turtles and "You Can't Always Get What You Want" by The Rolling Stones triggered objections from those bands. Between the opening and the closing songs came other tunes like "We Are the Champions" by Queen and "Here Comes The Sun" by George Harrison of The Beatles, prompting protest from the artists or their estates. As the Democrats take the stage for their own convention in Philadelphia this week, it's worth a moment to look back at Donald Trump's coronation because it offers up an excellent lesson on the often confusing state of song rights. Of all the bands listed above, only The Rolling Stones stand a decent shot at winning a potential lawsuit. Here's why.

More than a year ago in this space, we wrote a column titled, "Don't Bet on Neil Young Beating Donald Trump In Court Just Yet."

At the time, Young had objected to Trump's use of "Rockin' in the Free World" at a presidential announcement event. But Trump's campaign manager told Fox that it had attained a blanket license from ASCAP. That meant that Trump had gotten a green light to publicly perform the composition. Eventually, word of this reached Young himself. The rocker later told Reuters, "He actually got a license to use it. I mean, he said he did and I believe him. So I got nothing against him. You know, once the music goes out, everybody can use it for anything."

Some legal observers have raised the issue of how songwriters might sue on non-copyright grounds. For instance, one popular theory perpetually floating around is that if a politician is using a song, that is a suggestion that the musician is endorsing the politician. This arguably would be a violation of the Lanham Act. As we wrote in our column on Neil Young's beef, though, this theory has been largely untested. Most of the lawsuits get settled when politicians lack incentives to litigate all the way to judgment. The case that went the furthest on this front rejected Lanham Act claims. Nowadays, with so many musicians speaking up, it also seems like a stretch to say anyone is confused that a song playing on the loudspeaker implies an endorsement.

So why might the Rolling Stones have a legitimate lawsuit? Back to copyright...

First, understand that a song comprises multiple rights. There's protection for those who write compositions. And there's protection for those who record them. Take "One Dance," which currently sits atop Billboard's chart. Drake and his record label own the sound recording while Drake shares rights for the composition with his publisher and eight other writers.

An ASCAP license addresses the songwriters and publishers. When Donald Trump took the stage on the second night of the convention to Queen's "We Are the Champions," the RNC's blanket license covered the public performance of the song's composition. Presumably, some of the money rendered by the Republicans went to songwriters. In other words, Freddie Mercury's estate got paid.

Guess who didn't get paid?

There's no blanket license covering public performance of sound recordings in most contexts. In fact, the owners of sound recordings own public performance rights pertaining only to digital uses. Much to the chagrin of those who advocate for the "Fair Play Fair Pay Act," when terrestrial radio operators, bars, sports stadiums and others publicly perform Drake's "One Dance," they don't pay for use of the sound recordings. Similarly, when the Republican National Convention played "You Can't Always Get What You Want," the owners of this recording were not paid.

But wait!

Back in 2013, Flo & Eddie of The Turtles started filing lawsuits across the country with a bold premise. They proposed that since federal copyright law deals with sound recordings after 1972, it's up to state laws to protect works authored before then. Federal law might not give owners of sound recordings extensive public performance rights, but perhaps state laws do. And so, Flo & Eddie gained success on their so-called "common law copyrights" in New York and California. The RIAA members (asserting rights to Rolling Stones sound recordings among others) also scored a victory in California too. A few weeks ago, Flo & Eddie even kept hope alive in Florida.

To sum up where we're at: An ASCAP license covers the public performance of songwriting, but not the sound recording. A sound recording authored before 1972 like "You Can't Always Get What You Want" might require special permission to be performed in public. Whomever owns that song — whether it's the Rolling Stones or their record label — could bring a lawsuit asserting misappropriation.

If that happens, a judge would look to the law of Ohio where the Republican National Convention was held. Does the state protect against the unauthorized performance of sound recordings? Quite possibly yes. A few decades ago, in a Ohio case that went up to the Supreme Court, judges conferred protection on the "performance" of a human cannonball act. See Zacchini v. Scripps-Howard Broadcasting. It's not a huge leap to think that a court would take a look at this case and follow New York and California's lead (pending appeals) and do the same for the owner of "You Can't Always Get What You Want" in a lawsuit against Donald Trump and the Republicans.

Those reading closely might wonder why The Rolling Stones might have a good lawsuit — but not The Turtles, who have already shown a willingness to sue over use of "Happy Together," published in 1967? And why not the estate of George Harrison over "Here Comes the Sun," published in 1969? At the Republican convention, neither sound recording was actually played. Instead, the house band played cover songs. In other words, the Republicans performed the compositions — again, the ASCAP license deals with that — and in doing so, they avoided facing the type of very specific lawsuit available to address public performance of pre-1972 sound recordings. Had we heard the version where George Harrison sings, it would be a different story.

Just ask Howard Kaylan, a singer in the Turtles, who began the convention by tweeting, "We never approved this use. Now we call the lawyers."

The following day, he wrote again.

"I was annoyed," he tweeted. "And I did call lawyers. There is no legal recourse for covers. Not like Mrs. Trump outright theft."

No pair of tweets better sum of the current state of copyright law. And perhaps this year's Republican National Convention.

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