On Friday, Robert F. Kennedy Jr. suspended his campaign and endorsed Donald Trump. He then appeared at Trump's gigantic rally. I happened to be watching it at the time Kennedy appeared on stage, and quickly noticed that the Foo Fighters song "My Hero" was played.
Donald Trump welcomes Robert F. Kennedy Jr to the stage at his campaign rally in Arizona.
— The American Conservative (@amconmag) August 23, 2024
"I don't think I've ever introduced anyone who's gotten applause like he got."pic.twitter.com/dFZANHrEIF
I knew at that moment, this was going to cause a stir. Sure enough, the band is having a hissy fit.
“Foo Fighters were not asked permission, and if they were, they would not have granted it,” a spokesperson for the band told Billboard. According to the spokesperson, “appropriate actions are being taken” against the campaign. This is hardly the first time the Trump campaign has caused such a reaction. A campaign video of Trump featuring a Beyoncé song prompted a cease-and-desist notice, and the campaign's use of an Isaac Hayes song at several rallies resulted in a notice of copyright infringement.
Many have taken to social media, boasting that the Trump campaign is in huge legal trouble. But, in reality, probably not. Contrary to the recent headlines that dub Trump's use of the song(s) as unauthorized, without the artists' permission, or copyright infringement, if the campaign obtained a blanket license from a performance rights organization, the campaign would be completely in the clear.
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"Just as a politician might not listen to the music of an artist they aren't a fan of, musicians might not want their work used by a political party they aren't affiliated with," explains NBC Washington. "In many cases, campaign organizers pay an annual fee to obtain a blanket license from performance rights organizations to play or perform any work within a rightsholder's entire catalog."
Artists, however, do not always have control over how and when their music is played. Political campaigns obtain licenses from performing rights organizations like ASCAP that enable them to use a wide variety of songs from the catalogs of recognizable artists at live events. If an artist objects to its use, the song is pulled from the license.
“If the artist has already gone to the PRO and told them to stop using it ...your first step is a cease and desist letter from a lawyer. And sometimes that will work. And it does in many cases,” Kenneth Freundlich, a business, entertainment and intellectual property attorney told NBC. “Now, once it's pulled, technically, it's a copyright infringement for the campaign to continue to use it.”
It's only at that point that a campaign can face statutory damages.
"Campaigns operate on the ask for forgiveness rather than permission basis, especially when it is not in the context of a television commercial," explained Joel Sawyer, the former head of communication for South Carolina Gov. Mark Sanford. "If you are playing music at a live event, you kind of operate like a college cover band, just use the music and you hope for the best."
The real question is whether the Trump campaign obtained the blanket license—which I assume they did. In that case, he's likely not in any legal trouble unless he continued to use songs after a cease-and-desist notice.
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