Donald Trump’s dancing could cost him millions of dollars

In a rare step, last week the federal court granted an emergency hearing to rule on an injunction request from Isaac Hayes III, son of the Grammy-winning Hayes, and the songwriter’s estate. If they are victorious, it would mark the first successful legal action brought by a recording artist against Trump over his campaign soundtrack.

Hayes joined a long and growing list of songwriters and artists displeased by Trump’s sampling of their music, concerned that voters may interpret it as a political endorsement.

While other politicians have been on the receiving end of musicians’ wrath, Trump has received more cease and desist demands than any other politician, Republican or Democrat, combined.

• What will happen if Trump wins?

Clockwise from top left: Adele, Leonard Cohen, Phil Collins, John Fogerty, Tom Petty, Neil Young, Bruce Springsteen, Rihanna, Prince and Pharrell Williams

AP

Celine Dion objected to the Trump campaign’s use of My Heart Will Go On at a rally in Montana. “In no way is this use authorised and Celine Dion does not endorse this or any similar use,” a statement from her team said. “And really, that song?”

Others include Bruce Springsteen, Rihanna, Pharrell Williams, John Fogerty, Neil Young, REM and Guns N’ Roses, as well as the Rolling Stones, the Beatles, Adele, Phil Collins and Eddy Grant. The estates of deceased performers — Leonard Cohen, Tom Petty and Prince — have also taken action.

As a result, the former president’s playlist has shrunk to just a handful of tracks, the most popular of which is Lee Greenwood’s patriotic anthem God Bless the USA.

Hayes III said Trump’s refusal to comply “epitomises a lack of integrity and class”. He said he found it particularly egregious that Trump danced to the song at a 2022 NRA rally held in Texas in the wake of the Uvalde school shooting, where 19 children and two adults were murdered only miles away.

“I was pissed,” Hayes said. “There’s just been a mass shooting. So why are we using it at the NRA convention? I wanted to take legal action because Trump has made statements against women and here is a man who has been convicted of sexual abuse. I’m a brother to seven sisters, and I don’t want anybody to [listen to] Hold On and think of Donald Trump.”

• What are the US swing states in 2024?

Facing the music: Isaac Hayes III is defending the rights of his late father, who wrote Hold On, I’m Coming, sung by Sam & Dave

PARAS GRIFFIN/GETTY IMAGES

ANTHONY PIDGEON/REDFERNS

ECHOES/REDFERNS

Artists rarely have full control over where, when and how their music is played. Performance rights’ organisations that represent most recognisable recorded music, such as Ascap and BMI, require political campaigns to obtain licences that allow them to use songs from their vast musical catalogues. Even if a political licence is acquired, however, artists can yet object to its use and the song is pulled from the licence.

In Barack Obama’s 2008 presidential campaign, Sam Moore of Sam & Dave asked him to stop using the song as he was concerned it would be considered an endorsement. Obama’s team complied. However, not all politicians honour the licensing agreement.

Songwriters are within their rights to send cease and desist letters, as Pharrell Williams did after his song Happy was played at a Trump rally in 2018 and Beyoncé did last week when Trump’s campaign manager used her song Freedom in a social media post.

• Trump v Beyoncé: why country music is being ripped apart by politics

It is much rarer, however, for it to escalate to a civil lawsuit, as most do not want to get bogged down with often lengthy and costly legal proceedings.

Neil Young filed a suit in 2020 over the Trump campaign’s use of his music including Rockin’ in the Free World, but later voluntarily dismissed the case “with prejudice”, meaning it cannot be brought again.

Eddy Grant sued the Republican nominee for $100 million last year over the use of his 1980s dance hit Electric Avenue in a Trump campaign animated video that mocked President Biden. The video features a 40-second snippet of Grant’s song, which refers to Electric Avenue in London during the 1981 Brixton riot, playing over an animated depiction of Biden pushing a handcar while a high-speed Trump campaign train passes.

• Can Kamala Harris beat Trump?

Eddy Grant and Celine Dion, below, have both tussled with Trump over using their songs

MATT JELONEK/WIREIMAGE/GETTY IMAGES

BRIAN RASIC/WIREIMAGE/GETTY IMAGES

Trump’s lawyers argue that Grant had created the track for entertainment purposes and that the candidate had used it for political commentary, which was a “fundamentally different and new purpose”, covered by the doctrine of fair use.

The case is still working its way through the courts.

“Copyright law is a pretty straightforward strict liability,” James L Walker, an attorney representing the Hayes family, said.

• From 2022: DJ Donny T adds Les Mis to his macho-man mix

Legal experts said the lawsuit hinged on the Hayes family removing the song for Trump’s use from the political use licence. “If the political licence supersedes the blanket licence, the candidate or campaign would have to get permission from the artist or copyright owner before using that song or risk a claim for copyright infringement,” Warren Bleeker, a partner in Lewis Roca’s Intellectual Property Practice Group, said.

“In addition to relying on copyright infringement, an artist can argue that a politician’s use of an artist’s song implies a political endorsement of that candidate where none exists and can lead to consumer confusion in violation of the Lanham Act,” he added. However, this type of claim can be harder to prove than straightforward copyright infringement, he said.

• From 2019: The day the Rolling Stones got rough with Trump

Hayes’s lawyers are confident they can win their case. “Mr Hayes is in that rare category where he understands copyright,” Walker said. “He understands how you protect yourself, how you protect your publishing. So he knows this just as well as anybody else, if not better.

“Ultimately, I think Isaac has been nice about it by asking [Trump] kindly to remove it. And when someone doesn’t respect your time, you’re left with no other alternative than to take it to a courtroom.”