Copyright Law

Neil Young sues to stop Trump campaign from using his songs; will consent decrees stand in the way?

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Consent decrees designed to stop anti-competitive conduct by music licensing organizations could pose a problem for musician Neil Young, who is trying to stop President Donald Trump’s campaign from using his music.

Young filed a federal lawsuit in New York last week that alleges copyright infringement by the campaign, report the New York Times and the Hollywood Reporter.

The campaign was using “Rockin’ in the Free World” and “Devil’s Sidewalk” over Young’s objection.

“Plaintiff in good conscience cannot allow his music to be used as a ‘theme song’ for a divisive, un-American campaign of ignorance and hate,” the suit says.

Most compositions are licensed by the American Society of Composers, Authors and Publishers, known as ASCAP, or Broadcast Music Inc., known as BMI. Political campaigns use artists’ songs through blanket licensing deals with the ASCAP and the BMI, leading Young to at first conclude that he could do nothing to stop the music.

The blanket licenses apply to venues where the songs are being played. The ASCAP and the BMI also offer special licensing deals that allow political campaigns to use artists’ songs at any venue.

But the ASCAP and the BMI have begun removing some songs from the catalog licensed to campaigns at the request of artists. A contract clause allows the artists to raise objections to political use of their songs.

The ASCAP and a lawyer for Young confirmed to the New York Times that it has removed “Rockin’ in the Free World” and “Devil’s Sidewalk” from its political license catalog. But it’s unclear whether the removal violates consent decrees regulating anticompetitive conduct, experts told the New York Times.

The consent decrees were reached with the Department of Justice in 1941 and significantly revised in 1950, according to a Forbes article. According to Forbes, the decrees require the ASCAP and the BMI to offer music licenses to businesses on equivalent terms and ban the licensing groups from partially withdrawing rights to circumvent the decrees.

The ASCAP and the BMI contend that they can remove songs to prevent erosion of the economic value of a song’s copyright. BMI general counsel Stuart Rosen explained the theory to the New York Times.

“BMI does not remove a song from the license in order to achieve higher rates or for any reason other than that the rightsholders believe the association of their song with a campaign is an implied endorsement and diminishes the value of that work,” Rosen said.

The consent decrees could be changing. The DOJ’s antitrust division has opened a review of the agreements. The department sought public comment on several questions, including whether antitrust statutes and case law are sufficient to protect competition if there are no decrees.

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