Could the Rolling Stones bar Donald Trump from using Don't Start Me Up?

May 5, 2016 5:45 AM

What is the legal position here? Can a band actually deny someone the right to use a song of theirs in public? Or - providing the appropriate royalties are paid - does the band relinquish all control of the song's usage as soon as it's out in the market? Similarly, could a band bar someone from covering one of their songs? In this case I'm thinking of a case like Noel Gallagher objecting to The Smurfs' plans to cover an Oasis song.

My guess is that most bands sign a blanket publishing deal which puts their music up for grabs in every way possible, and then shrug off any questionable use as they count their money. There are exceptions though - such as Nick Cave's refusal to licence his songs for commercials - and I'm curious to know how this whole area works in law.

posted by Paul Slade to Media & Arts (13 answers total)

The short answer is that is depends on where and how it is played and subsequently recorded or broadcast. If Trump is speaking in a bar, and the bar has paid it's dues to the PRO that licenses the Stones, then there's nothing Mick can do. But if that speech is being broadcast live, then that is a whole different set of laws, that I do believe requires additional permissions. And if the speech is somewhere like on a street or in a private residence that also probably will change what music can legally be played.

I'm sure a rights lawyer will pop in here soon so I guess my half-educated comment boils down to: It is very complicated and it's more of a request than a real legal threat to ask them not to play it.
posted by Potomac Avenue at 5:52 AM on May 5, 2016 [1 favorite]

It also depends on how much effort the musicians want to put in to stopping the politicians from co-opting their music. It can quickly become A Thing if a politician keeps playing a song where the artists don't back them - Ronald Reagan and Born in the USA and Sarah Palin and Barracuda for example.
posted by robocop is bleeding at 6:11 AM on May 5, 2016 [4 favorites]

Although they seem similar, the Nick Cave and Oasis cases are actually very different, because one is about the *recordings* and one is about the *song*. Songwriters have very little control over who can cover their songs (although they do get paid, assuming they own the copyright). You need what's called a "mechanical license" to produce a cover version, which is simple and transactional and you basically say "OK, I'm recording X songs and I'm going to sell Y copies, here's $X*Y*Z." It's like buying something from Target; you just do it.

With the actual recording, the copyright holder has a lot more control over how it's used as part of other creative work (like movies, TV, commercials); they're usually going to have to negotiate an individual license.

There's also the question of soundalike recordings - if you want to use a Beastie Boys song in your commercial (for example), but they don't allow that, you can use a cover version, but you can't use a sound-alike cover version.
posted by mskyle at 6:58 AM on May 5, 2016 [5 favorites]

Oh and to answer your actual question: Trump can't record a commercial or a TV special using a Rolling Stones recording without their permission. He could use a cover version, but not if it sounds really convincingly like the original.

He can play whatever he wants at live events, pretty much, assuming he or the venue pays the appropriate licensing fees.
posted by mskyle at 7:02 AM on May 5, 2016

Broadcast is covered by synchronization rights, and as Potomac Avenue points out, having the song played in a venue is usually covered by the fees the venue pays to the PRO's.

If you check out the "sync rights" page, you'll see that there are actually two copyrights in play - one to the actual recording of the song, one to the song as a composition. Both copyrights can be (and often are) co-owned by multiple people or companies. So a lot depends on who controls either or both copyrights - Mick and Keef may or may not actually have the ability to tell Trump, "No." Or, as robocop points out, they may not want to incur the effort & expense of taking legal action against him; simpler to just issue a press release pointing out that he didn't actually ask permission and that they don't support him - as they have, along with Adele, Elton John, Neil Young, Aerosmith, Twisted Sister, and others.
posted by soundguy99 at 7:08 AM on May 5, 2016 [1 favorite]

According to this ASCAP summary about using music in political campaigns, the use of music by the Rolling Stones during campaign events is probably legal as long as either the venue or the campaign itself has acquired a performance license from ASCAP or a similar licensing organizations. (This seems to be the type of use the Stones have complained about.)

So the amount of control the band has over this type of use is limited. There are other legal issues, like the right of publicity (recognized in some U.S. jurisdictions, though not all), trademark dilution or false enforcement. But for this type of enforcement to succeed, the band would have to show not only that the campaign had used the song, but that the use implied an association between the Stones and Trump in a way that was damaging to the musicians or suggested the Stones supported Trump, which the mere fact of playing the song at campaign events, even on a regular basis, is unlikely to be the case.

Using the music in a political ad would require that the Trump campaign deal with the Stones (or their publishing company, which for later recordings at least I believe are controlled by band members) directly.
posted by layceepee at 7:22 AM on May 5, 2016 [3 favorites]

In other words, it's complicated and very much depends on the details of the contracts artists have signed with labels and publishers.
posted by soundguy99 at 7:25 AM on May 5, 2016

Above comment meant as an answer to your questions, not a reply to layceepee, btw.
posted by soundguy99 at 7:28 AM on May 5, 2016

If I were the Stones, I'd state that Trump is permitted, nay, encouraged, to play "Start Me Up" at his rallies, so long as he plays the bit where it goes "you make a grown man cry."
posted by kindall at 11:07 AM on May 5, 2016

It doesn't answer the question, but the Rolling Stones song is called "Start Me Up".

"Don't Start Me Up" is a different song by someone else.
posted by w0mbat at 2:42 PM on May 5, 2016

Response by poster: Apologies, w0mbat: you are perfectly correct. Like many Rolling Stones fans, I am now reaching the age where I have senior moments, and that was one of them.

Thanks to everyone above for their answers. I'm now much clearer on this issue than I was a few hours ago. One of the reasons I love Metafilter is that a factual question here tends to produce replies from people who actually possess the relevant information, rather than those who simply want to offer a random guess. That's not the case on many - or even most - others sites.
posted by Paul Slade at 3:11 PM on May 5, 2016

My guess is that most bands sign a blanket publishing deal which puts their music up for grabs in every way possible, and then shrug off any questionable use as they count their money.

FWIW, labels and publishers do tend to push deals on bands/musicians where the label/publisher controls the rights and gets the lion's share of the money - and when you're young and hungry and desperate for stardom, you sign, because a bad deal is better than no deal. (And for lots of bands like the Stones no-one including the Stones ever thought anyone would care about the songs 6 months after they were released, much less 60 years later.) Later bands have often learned from the mistakes of their elders, and signed deals that give them more control; or if a band is around long enough they can renegotiate those deals. Still, it's often far less about shrugging because you got paid as it is shrugging because you don't actually have full legal control over where and when your music is used.
posted by soundguy99 at 4:08 PM on May 5, 2016

Yes, the key issue is that there are almost no cases where a songwriter owns the rights to his/her own recording AND the recording is well-known enough to be useful for a political campaign.

Songwriters have only what's called the right of first recording (that is, we do have the right to say no one is EVER allowed to record a particular song -- but as soon as the first recording of a song has been released, any other party is allowed to record their own version of it, as long as they correctly do the mechanical licensing payment mskyle mentioned).

Even with a song recorded by its writer, assuming the recording is owned by the label, the writer has no say in how the recording can be used/licensed (meaning, yeah, the most effective way to combat use by people s/he disagrees with is to talk about that in public).
posted by kalapierson at 10:03 AM on May 6, 2016