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Sue Like Jagger

The Rolling Stones' lead vocalist, Mick Jagger.
Mick Jagger on tour with the Rolling Stones, 2018. Photo by Flickr user Raph_PH.

Mick Jagger famously flaunts his “Sympathy for the Devil.” For President Donald Trump, not so much.

Jagger and his Rolling Stones bandmates threatened to sue Trump’s campaign if he does not stop using their music at rallies like the one he held last month in Tulsa, Oklahoma. Or like all the rallies he held for his 2016 campaign. Or any other rallies he might hold in the future.

Jagger and the Stones are among many musicians who do not care for the president and do not want themselves, or especially their music, associated with him in any way. Many, like Jagger, have threatened legal action if Trump does not cease and desist. But the president has shown little inclination to cease and, with rare exceptions, no desire to desist. (Forbes reported that Trump did agree not to play Aerosmith’s music after frontman Steven Tyler “asked [him] not to.”) Many of these musicians, again like Jagger, have sent sternly worded letters demanding to be left out of Trump’s campaign. I suspect at least a few have also tweeted at the president, which is usually a more effective way of reaching him.

For the most part, none of it has worked. And for the most part, the musicians have been well advised to make their objections public and otherwise leave well enough alone. This is because – as I am certain Jagger and the Stones are well aware – they would probably lose if they actually took the president to court.

You may wonder why that is. I have music industry clients who sometimes wonder the same thing, so let’s explore.

Every publicly released musical recording involves two sets of rights. First, there are the rights to the song itself: the music and lyrics. These rights are the property of the songwriters and, in most cases, their publishers. Second, there are the rights to a particular performance and its recording – the “master,” as it is known in the music business. Masters belong to the musicians or, if they are signed, to their record labels. (Some musicians are able to negotiate ownership of their masters even when working with a label, but this takes serious clout.)

When a recording is played in a public venue like Tulsa’s BOK Center, where Trump’s rally took place, it is considered a “public performance.” Composers and their publishers are entitled to be paid for public performance of their work. It is not practical for them to monitor every arena, concert hall, airport lounge, dentist office and coffee shop in the world, of course. So the composers affiliate with PROs – performance rights organizations – to handle such monitoring for them. In the United States, the main PROs are Broadcast Music, Inc. and The American Society of Composers, Authors and Publishers. A smaller share of compositions are assigned to SESAC.

Even the PROs cannot be everywhere at once. There is no way for them to monitor every song played in every public space. Instead, ASCAP, BMI and SESAC issue blanket licenses that entitle a particular venue – anything from a coffee shop to a football stadium – to play every song in their catalog for a fixed price and for a fixed period of time. Many songs are the work of multiple writers, who may be affiliated with different PROs. So as a practical matter, every big venue that hosts music events – like the BOK Center – takes out a blanket license from all of the PROs. From the venue’s perspective, they have thus taken care of their obligation to songs’ writers and publishers.

This is why you don’t have to worry about getting a license from the wedding venue when your band or DJ plays a sentimental favorite song for the father-daughter dance. The venue has already obtained a license, or it risks legal problems with the PROs.

How do the PROs know exactly what songs were played at individual venues so they can compensate the writers and publishers? When it comes to recorded music, they don’t. Instead, they do surveys to get a general idea of what is being played. Then they guess and apply that guesswork to the staggering number of tracks that they supervise – 15 million, in BMI’s case.

So when the Rolling Stones prod BMI to send the Trump campaign a letter demanding it stop the unauthorized use of their recorded compositions, the campaign’s obvious response is that the use is authorized under the venue’s existing licenses with the PROs. BMI has asserted that it separately licenses political campaigns and specifically prohibits them from relying on blanket venue licenses. Whether BMI and ASCAP – which are subject to a long-standing and contentious antitrust consent decree with the Justice Department – want to test such a position in court remains to be seen.

So much for the composition. But what about the recording itself? Why can’t a band or its label demand that a certain party refrain from playing their work in public? The short answer is that the law does not give them that power. There have been proposals to change that, but those proposals have not made it into the law so far.

Maybe you think a band or artist should stand on principle and sue a politician for unauthorized use of their music anyway. Few have tried. One who did was Frankie Sullivan, a former member of Survivor, who sued Newt Gingrich for using “Eye of the Tiger” at campaign events. That suit was settled out of court after Gingrich abandoned his 2012 presidential campaign. Someone could try their luck against Trump, but that might mean giving the president a chance to prevail in court, crow about his victory and set a precedent that many artists will not relish.

I suspect performers find it more useful to make a lot of noise in public to communicate their political sympathies, or absence thereof, to their fans.

Are artists powerless to prevent unauthorized use of their name and their work? Not entirely. It is one thing to publicly play a recording before or after a speech. It is a very different matter to use an artist’s music in a commercial, a vlog, or any other setting that marries music to pictures. Such “sync” usage is not automatically authorized by law or PRO licenses. It is subject to negotiation with the composition’s writer and publisher, and the recording’s artist or record label. Permission for such use is easily and frequently denied.

Artists also retain the rights to control the use of their own name, image and trademarks. Any misuse of those assets could subject a political candidate to real liability. Any verbal or written communication that falsely implies an artist’s endorsement could be considered a deceptive advertising practice, as well.

This is the place where every hack writer throws in a line about Jagger getting no satisfaction. Not me. I will merely observe that while Jagger probably won’t get what he wants, because wild horses won’t stop Trump from being Trump, he’ll get what he needs. He might say it’s a bitch, but the Rolling Stones have been big for a lot longer than Trump. Time is on his side.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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