Tom Petty’s Estate Takes Offense of the Use of His Song at Trump Rally
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Tom Petty’s estate has issued a Cease and Desist letter to Donald Trump’s reelection campaign. This was in response to the use of Petty’s song “I Won’t Back Down” at a rally in Tulsa, Oklahoma on June 20, 2020. Within hours of the use of the song, Petty’s family issued a tweet that read in part: “Trump was in no way authorized to use this song to further a campaign that leaves too many Americans and common sense behind. Both the late Tom Petty and his family firmly stand against racism and discrimination of any kind. Tom Petty would never want a song of his used for a campaign of hate. He liked to bring people together.”
Petty is the most recent in a series of artists and their estates (including REM, Adele, Guns N’ Roses, Pharrell, and Queen) to object to the Trump Campaign’s use of their music. These musicians, like Petty’s estate, correctly assert that music must be licensed before it can be used by a political campaign. When a musician writes and records a song, they are entitled to protection of both the underlying musical composition and the sound recording (the recording of the work as performed by the artist).
Trump’s use of Petty’s song was likely a violation of the Petty estate’s right to control public performances of his work. §101 of the Copyright Act of 1976 defines public performances as “to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” This includes playing music at a bar, gym and at larger venues such as stadiums and convention centers. Venues typically work with Performing Rights Organizations (PROs) such as ASCAP and BMI to get blanket licenses to use the work of multiple artists represented by the PRO.
However, venue licenses do not cover use at campaign rallies. According to ASCAP: “Because licenses for venues such as convention centers and hotels generally exclude rights to perform music at events organized by a third party, political campaigns need their own ASCAP license to use the works in its repertory.” There is no indication that the Trump campaign obtained such a license. However, even if Trump did obtain such a license, the use at the Tulsa rally may still have been in violation of the Petty estate’s rights.
As the song was broadcast along with images of the rally itself, the Trump Campaign likely also violated the Petty estate’s synchronization (sync) rights. Separate from that for public performance, a license is needed to use music in conjunction with images, such as in a music video or televised speech. These licenses are typically obtained through an intermediary separate from the PROs discussed above.
Finally, the Petty estate may be able to claim that the use of his song falsely implies sponsorship, i.e. that Petty (who died in 2017) supported Trump during his lifetime or would support Trump if he were alive today. As ASCAP explained: “the more closely a song is tied to the “image” or message of the campaign, the more likely it is that the recording artist or songwriter of the song could object to the song’s usage by the campaign.” Petty’s songs’ title and refrain of “We won’t back down” could be interpreted as conveying a message about the campaign. If the Trump campaign persists in using Petty’s song without permission, the estate may choose to sue the Trump campaign for injunctive relief to prevent them from using the song. Monetary damages may also be available.
3. Christianna Silva, Tom Petty’s Family Doesn’t Want Trump Using His Music For A ‘Campaign Of Hate’, NPR.
4. 17 USC §101