Tag: Neil Young

Podcast: Talking with Helienne Lindvall Because Streaming is Still Broken

Neil Young pulls his music from Spotify to protest the content on Joe Rogan’s podcast, and Joni Mitchell and Crosby, Stills, and Nash follow suit. It’s a big story for a week, and some noise about “cancel culture” and Rogan himself lingers, but we’ve mostly moved on. Meanwhile, the economic model for music streaming is still broken. Songwriters make pennies for millions of streams, and the dynamics of the data-driven market are not quite conducive to the kind of experimentation and risk-taking that dominated the period when artists like Young and his contemporaries rose to fame. So, why don’t legacy artists who can command so much attention use that power to advocate for fair compensation for the next generation of artists?  I don’t know the answer, but the question prompted me to invite songwriter/columnist Helienne Lindvall to join me for this episode.

Helienne hosts “Sounds” on BBC, talking about the ways in which streaming has changed the craft of songwriting. 

Rockin’ in the Free(booting) World: Neil Young v. Trump for America

Recent reports that Neil Young is no longer asking or insisting that the Trump campaign stop using his music, but is instead suing Trump for America for copyright infringement, highlights the extent to which this longstanding controversy between artists and politicians has heated up in recent years. It is a subject that overlapped recently in the Senate IP Subcommittee hearing on the DMCA and fair use.

It is too early to say whether Young’s infringement complaints against the Trump campaign have legal merit because this will depend on facts we do not yet know for certain. For instance, when a candidate (or anyone) publicly performs recorded music, this is typically covered by performance rights licenses that are either paid by the venue(s), the party(ies) using the music, or both. These licenses are compulsory, meaning the copyright owners cannot refuse them as long as the users are in compliance.

But if a political campaign uses music in a commercial, or even uploads video to the web that was captured at a live event (e.g. the candidate waving at the crowd while a specific song plays), that requires a whole other license, and one that is not compulsory. Further, if a candidate uses a song in such a manner that it begins to acquire the feel of campaign theme music (e.g. “Don’t Stop” and Clinton), the creator(s), if they do not wish to endorse the campaign, can sue under the Lanham Act for infringement of their right of publicity. As yet, Young has not asserted his publicity right, and it remains to be seen what will be discovered vis-à-vis his copyright claims against Trump’s use of the songs “Rockin’ in the Free World” and “Devil’s Sidewalk.”

Of course, none of the legal technicalities quite get to the heart of the matter for musical artists. After the Trump rally (flame-out?) in Tulsa, the Rolling Stones and the Estate of Tom Petty also demanded the campaign stop using their music, with the Stones at least threatening to file suit. And even though the performance rights licenses technically cover campaigns in most cases, there is something to be said for the fact that the original purpose of those licenses was primarily to cover entertainment music as a medley of tracks played at a public event or at a restaurant or bar—or a venue like an open mic where guest musicians might perform a variety of cover songs.

All those uses are clearly different from a scripted moment at a campaign event, when a political operative intentionally plays a song on cue, with the purpose of galvanizing the crowd or emphasizing a particular theme or attitude—and usually based entirely on the chorus. On that note, it is germane to this topic that the only way to harmonize Trump’s idea of American exceptionalism with Neil Young’s verses about junkies and children suffering in the streets is if those dark images represent a kind of mission accomplished statement by Trump and his acolytes.

More likely, Trumps use of “Rockin’” is a classic case of political figures (or corporate users) playing a song solely for its chorus while ignoring the verses. Only in this instance, it happens to be profoundly Trumpian to completely miss the fact that Young is being sardonic, saying that the free world ain’t exactly rockin’. More bizarrely, Young takes direct aim at the “kinder gentler” rhetoric of George H. W. Bush in 1989, which was, in reality, both kinder and gentler than the raw mean-spiritedness and blatant ignorance of the Trump administration. Of course Neil Young doesn’t want his song prominently associated with Trump’s message. And, it turns out, neither do a lot of popular musical artists.

As discussed in this post about Mike Huckabee being sued for using the song “Eye of the Tiger” (which his campaign settled for $25,000), when orchestrated political theater appropriates a musical expression to incorporate into a given message, this does bridge the artist with the politician. In copyright terms (although there is no such license), one can almost think of these moments as “live synch” events. And invariably, these moments are now all captured on video and uploaded by a campaign to their social pages, where they become literal “synch” events that require the aforementioned non-compulsory license.

Given the fact that the compulsory performing rights license was the result of the DOJ finding both ASCAP and the NAB guilty of anti-trust practices back when radio was new, it is little wonder many music creators want to reform or abolish the compulsory license regime. And if there were ever a serious conversation about such reform, it should naturally influence the evolving dialogue about the use of works by political speakers in the digital age. Copyright is not exclusively about compensation; it can also about preserving the integrity of expression and proscribing the misuse of an expression to make statements anathema to the artist’s vision.

That should not be confused with a fair use that an artist may despise, either because the use is critical, parodic, or transformative in some way that the original creator finds personally offensive. Political uses of works, like those at issue for Young, do not generally fall into these types of fair use considerations.

In my post about the fourth DMCA hearing before the Senate IP Subcommittee, I mentioned that attorney Matthew Sanderson called political use of works “paradigmatic fair uses.” But notwithstanding the limitations of congressional testimony, I would argue that was too broad a statement by some margin. Just because political speech is paradigmatically protected speech under the First Amendment, that principle does not make political use more amenable to a finding of fair use. Under factor one of the fair use test, the purpose and character of the use, a political campaign should not (and very likely would not) be afforded any more deference than a news commentator, a critic, or a creator adding new expression to the original work.

In fact, I would go a step further and say that political campaigns have less in common with exemplary fair uses and are more comparable to ordinary marketing and advertising of goods and services. That is, after all, what a political campaign is:  marketing a candidate. And advertising is almost wholly incompatible with fair use, as it is arguably the paradigmatic forum requiring licenses to use creative works. Add to this the fact that there are rules prohibiting misrepresentation in advertising a can of paint and no rules requiring a politician to tell the truth, and of course copyright owners are going to bristle at unlicensed uses of their expressions in political messaging.

So, if it turns out that Trump for America lacks the relevant licensing at issue in Young’s lawsuit, the campaign would (and should) have a hell of a time trying to present a fair use defense. Huckabee attempted to do so in the above-mentioned example by claiming that his playing  “Eye of the Tiger” at a rally for Kim Davis* was for a purely religious rally (for which there is a statutory exemption) that was not part of his campaign. But the fact that Huckabee for America settled for twenty-five grand suggests that his legal counsel did not see a viable path forward in Huckabee’s sudden appetite for the separation of church and state.  

If I interpret the nature of Young’s complaint correctly, it is similar to the Huckabee example—that “Rockin’” in particular was not just played as background music but was prominently and repeatedly performed such that Young’s voice has been too-often used to speak for Trump. In the end, copyright litigation may or may not offer the remedy the singer/songwriter seeks, but it should be clear that the use of creative works in political messaging can very easily cross the line to become coerced speech. So, whatever the best remedy might be, any defender of the speech right and authors’ rights should agree that a remedy is needed. 

*Davis was the Carter County, KY clerk who was jailed for refusing, in contravention of the law, to provide a marriage license to a same-sex couple. Huckabee staged a support rally for her outside the Grayson, KY detention center on the day of her release.

Music on the Campaign Trail

In the Fall of 1977, just weeks before gay rights activist Harvey Milk won a seat on the San Francisco Board of Supervisors, the English rock band Queen released the album News of the World. The LP included a short, heavily-rhythmic single called “We Will Rock You”, which typically segues into the anthemic “We Are the Champions”. Written by Queen’s lead guitarist Brian May, “We Will Rock You” was recorded in an abandoned church in north London because the band liked the acoustics. And as Seth Wickersham, writing for ESPN reports, “For weeks, Mercury and May took turns stomping on old pews and clapping, until they got the right sound.”

Nearly four decades later, “We Will Rock You” remains the number one track played at American sporting events—a fact that has intrigued me as much as I imagine it’s made a few structural engineers nervous since the trend began. Forgive the generalized stereotype implicit in this observation, but to watch, for instance, forty thousand Dallas Cowboys fans sing along with gay Freddie Mercury in virile support of their football team is  exactly the kind of cultural counterpoint I appreciate when it happens. The song was literally born in a church; it was sung by an incredible artist whose identity was at least somewhat restrained by the semi-tolerant limbo of homosexuality through the 1980s and the AIDS crisis; and then it became the Sunday hymnal of some of the most mainstream and socially conservative Americans, all rallied into chorus by May’s thump-thump-clap rhythm.

The fact that the verses of “We Will Rock You” are about loss and futility only adds another layer of irony to its role in sports fandom; but this is generally what we make of music anyway. The chorus and the rhythm fit our moods of triumph, sorrow, defiance, momentum, heartbreak, and so on, even if the lyrics and melody tell a very different story. And this relationship to music often comes into sharp relief when political candidates use a popular song—almost always because of the chorus—at campaign events.

In particular, when candidates represent or evangelize a point of view that is anathema to the authors’ beliefs—or even in direct opposition to what a song itself might be about—it has lately become a regular feature of our politics to hear of artists either asking or demanding that politicians not use their works. These stories, of course, lead to all manner of confusion about copyright, fair use, and the control an artist may or may not exert in these contexts. In most cases, people seem to side with artists, which is certainly encouraging, though hatred of a political candidate and love of a musician isn’t necessarily the clearest lens through which one might view these conflicts.

When Neil Young demanded that Donald Trump stop using his song “Rockin’ in the Free World” at campaign events, fans praised Young, though it’s not clear that he was on solid legal ground at the time. In general, a campaign is covered as long as the venue or the campaign itself has paid fees to Performing Rights Organization (PRO) like ASCAP, BMI, or SESAC (or all three) to license the use of nearly any song for public performance. The campaign has a responsibility to ensure the venue has these licenses (or to get its own), but as long as the PROs are covered, the artists and songwriters generally have no say, from a legal perspective, about the context in which their songs may be used at live events.

Artists may certainly ask a political candidate not to use a song, and they are free to publicly criticize the use as much as they want, but they can’t rely on copyright law to stop a politician from making this kind of use if the licenses are up to date. In another context, however, if a candidate makes repeated use of a song to the extent that it starts to become his/her theme music, the artist may see this as unlicensed endorsement and seek to enforce his/her right of publicity in order to stop the use. I’m not sure what the legal facts were in the Trump/Young kerfuffle; I’m guessing the campaign was most likely in the clear but decided to let the song go rather than allow a public fight with Neil Young to distract from its core message at the time of hating on Mexicans. One must prioritize.

Mike Huckabee Uses Eye of the Tiger at Kentucky Rally

In a different—and slightly bizarre—circumstance, the organization Huckabee for President, Inc. is facing a lawsuit by publisher Rude Music for copyright infringement stemming from a public performance of the song “Eye of the Tiger”, co-authored by Rude Music’s owner Frank Sullivan for the 1982 motion picture Rocky III. Approximately one quarter of the four-minute song was played outdoors at a rally in Grayson, KY on September 8, 2015 immediately after candidate Huckabee introduced Kim Davis to the podium following her release from the Carter County Detention Center, where she had been jailed for her refusal to issue marriage licenses to same-sex couples. It’s a safe bet the county jail hadn’t paid any PRO licenses as they probably don’t host a lot of parties or other events requiring music. Ostensibly, this suggests the Huckabee campaign messed up in one way or another, and the defense presented in their case seems a little odd.

The attorney for Huckabee has presented affirmative fair use defenses addressing all four factors, including a less-frequently-cited exception for use of music at a religious assembly. In fact, the defense states that the candidate was only in attendance as an evangelical Christian in support of a rally called the “We Stand With God Pro Family Rally”, organized by a religious group and not the Huckabee campaign. What seems odd to me, though—and speaking as a layman of course—is that the foundation of Huckabee’s defense would appear to be that the Grayson event simply was not his show—that their operatives did not publicly perform “Eye of the Tiger” as part of the Huckabee for President campaign. And the reason I say this is odd is that if this fact can be proven—or cannot be disproven—then the fair use defenses presented would be moot.  If Huckabee for President, Inc. did not publicly perform the song, then it cannot have infringed, which begs the question of offering any fair use defenses at all. If a use by a defendant does not exist, then there is no question of fairness to be judged.

So, the defense of religious assembly is irrelevant if it was not Huckabee’s assembly; and if it was in any way his assembly, he will have to prove that it was a purely religious gathering having nothing to do with the campaign. How he might hope to make that distinction, particularly when Mike Huckabee barely recognizes a separation between church and state, would appear to require a rather fine legal scalpel.

In particular, as mentioned, the candidate introduced Kim Davis to the stage and then somebody pushed Play on “Eye of the Tiger”; so even if this coordinated bit of theater came together impromptu, it looks an awful lot like the event became a Huckabee for President moment, regardless of whether it began as a religious assembly. One way or another—whether professionally planned or divinely arranged—candidate Huckabee certainly ended up with a neatly choreographed moment—shared via amateur video online—in which Davis joins him at the podium to the beat and triumphant lyrics of Sullivan’s famous comeback song. The fact that this particular visual is just one of many reasons Mike Huckabee will never be president has of course no bearing on the infringement case.

As our politics have become more divisive, and side-show happenings can gain wider exposure than in pre-Internet years, politicians’ use of popular music is likely to produce more frequent points of contention for both artists and their fans. And, as I say, while the particulars of these cases often sow confusion about copyright and its limitations, the emotional response is anything but irrelevant. That bile-in-the-throat feeling one might get if Donald Trump played Bowie’s “Heroes” at a campaign rally is neither petty nor dismissible. Because music is more powerful than either the smartest or the dumbest thing any political figure has ever said. It is simultaneously more primal and more enlightened. It’s why Brian May’s rhythm can induce Pavlovian harmony among millions of sports fans, who in another context might have righteously trampled Freddie Mercury’s civil rights. Maybe music for politicians should come with a label:  WARNING. CONTENTS MAY ROCK YOU. USE WITH CAUTION.