Can Political Campaigns Use Music Without Permission?

IP litigator Lawrence Iser weighs in on the Trump-Prince controversy

Published in 2020 Southern California Super Lawyers Magazine

Last night, as Pres. Trump left the stage during a campaign rally at the Target Center in downtown Minneapolis, the music of Minneapolis icon Prince, who died in 2016 at the age of 57, was heard throughout the arena.

Shortly afterwards, Prince was heard again—at least his estate was—on social media. Prince’s official account tweeted the following:

President Trump played Prince’s “Purple Rain” tonight at a campaign event in Minneapolis despite confirming a year ago that the campaign would not use Prince’s music. The Prince Estate will never give permission to President Trump to use Prince’s songs.

The tweet was accompanied by an October 2018 letter in which election attorney Megan Newton of Jones Day, representing Donald J. Trump for President, Inc., acknowledged the estate of Prince Rogers Nelson’s request to refrain from using Prince’s music “in connection with Campaign rallies or other Campaign events,” and added, “we write to confirm that the Campaign will not use Prince’s music in connection with its activities going forward.”

So now what? Lawrence Iser is an intellectual property litigator at Kinsella Weitzman Iser Kump & Aldisert in Santa Monica who specializes in the unauthorized use of music by political candidates. In 2008, he represented Jackson Browne in a lawsuit against the Ohio Republican party and others for unauthorized use of Browne’s “Running on Empty” in a YouTube political ad.

Could something similar happen here? Probably not. It’s all about the venue.

Via email, Iser clarified the matter: “Once again, the Trump Campaign has used Prince’s music to appeal to his base, notwithstanding that Prince is turning over in his grave. Unfortunately, if there’s a public performance license in place, there’s nothing the Prince Estate can do about it.”

He added: “So long as the venue or the Trump campaign has obtained a public performance license (from ASCAP or BMI) that covers Prince’s music, the use of Prince’s music would be licensed and could not be enjoined.”

It’s similar to the way then-candidate Trump was able to use the Rolling Stones’ music in 2016. It was part of an event, not part of an ad.

Iser was prescient on the topic in our 2018 profile of him. “There’s something about Republican candidates in particular wanting to play the music that doesn’t necessarily support them, to try and garner favor,” he said back then. “And I expect in the next election cycle it will continue.”

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