Trump in a “River of Trouble” for Infringing Copyright in Classic Isaac Hayes Song

Since 2020, Donald J. Trump and his campaign organization have regularly played the Sam & Dave classic “Hold On, I’m Comin’” at campaign events and rallies. Trump also posted (on Truth Social, natch) videos of events where the song was played. Someone in MAGA world - perhaps Trump himself - clearly likes the song.

Isaac Hayes and David Porter co-wrote “Hold On, I'm Comin.'” Hayes died in 2008 – long before Trump descended the marble-encrusted escalator at Trump Tower to launch his first campaign – so we can only guess how the R&B legend would have felt about the 45^th president’s use of his music. We need not speculate, however, about the opinion of his son Isaac Hayes III (a.k.a. Ike Dirty) who inherited his father’s copyright interest in “Hold On, I’m Comin’.” The son joins a growing list of artists - including ABBA, Beyoncé, Céline Dion, Sinéad O'Connor's estate, and Jack White - who have objected to Trump's use of their music.

In August, Isaac Hayes Enterprises (of which Isaac Hayes III is president) sued Trump and his campaign for copyright infringement in the Northern District of Georgia, seeking a preliminary injunction to stop further uses of the song and to force Trump to remove videos featuring it. Trump opposed the motion, arguing that his campaign was authorized to publicly perform (see 17. U.S.C. §106(4)) the song pursuant to a blanket license it had secured from the performing rights organization BMI. (See 17. U.S.C. §101 (definition of “performing rights society”).) Trump also claimed that the use of the song qualified as a fair use, but the court declined to rule on that defense based on the pleadings.

The standard public performance license that BMI issues to venues excludes political events and functions. For that reason, Trump obtained BMI’s Music License for Political Entities or Organizations, which expressly allows politicians to perform the millions of songs in BMI's catalog. However, because some artists would prefer that their songs not be used in political campaigns (at least those they don’t support), this license includes a provision that deauthorizes use of a particular song if an artist opts out of having it played by a particular pol. Specifically, the license provides that: 

“One or more work(s) or catalog(s) of works by one or more BMI songwriter(s) may be excluded from this license if notice is received by BMI that such BMI songwriter(s) objects to the use of their copyrighted work(s) for the intended uses by Licensee.”

On June 6, 2024, BMI notified Trump’s campaign pursuant to this provision that one of the songwriters for “Hold On, I’m Comin’” had exercised this opt-out right and that the song was “excluded from the Agreement effective immediately.” Even after receiving the notice, Trump continued to play the songs at events, and this has gotten him in a “river of trouble.”

On September 11th, District Judge Thomas J. Thrash granted the injunction, finding that, in light of uncontroverted proof that Trump had received this notice, “it is likely that the Plaintiffs will be able to show that the post-June 6, 2024 uses were without a license and infringed on Isaac Hayes Enterprises’s copyright.” The court also concluded that Isaac Hayes Enterprises had met its burden of showing irreparable harm if future uses of the song were allowed to continue:

“The Court finds that if the use of the Copyrighted Work continues, the risk of association with the Defendants and the harm that may ensue from that are actual and imminent and cannot be remedied through mere damages. Given the consistency with which the Copyrighted Work is used and the fact that the Defendants’ events are frequently aired on national television and other forms of media with widespread reach, the association between the music and the Defendants is neither speculative nor remote.”

Finally, the court found that the balance of the equities and public interest supported granting an injunction barring future uses of the song. The court didn’t buy Trump’s argument that granting an injunction would restrict his core political speech since there was “no evidence to suggest that the inability to play the Copyrighted Work in the future will inhibit the Defendants’ political speech, especially considering that the Defendants submitted a declaration stating that they do not intend to use the song at future public events while this litigation is pending.” Indeed, whether “Hold On, I'm Comin'” is about providing support to a lover in trouble ("Lean on me, when the times are bad") or the intimate moments that occur between two consenting adults ("Reach out to me for satisfaction, yeah/Call my name, yeah, for reaction/Yeah, yeah, yeah, yeah") - or about a trip to the bathroom? - it is difficult to believe that the high level of political discourse for which Trump is famous will be compromised if he can't play this one song at his rallies.

The court was not convinced, however, that Isaac Hayes Enterprises would suffer irreparable harm if videos of past events remained online. The injunction, therefore, leaves past videos undisturbed.

Isaac Hayes Enterprises, LLC v. Trump, No. 1:24-CV-3639-TWT, 2024 WL 4148758 (N.D. Ga. Sept. 11, 2024)