Interview of Atty. Dr. Christian Seyfert with “Deutsche Welle”: Neil Young vs. Donald Trump

by RA Dr. Christian Seyfert, LL.M. (San Francisco, GGU)

Recently, Atty. Dr. Christian Seyfert has given an interview to the German media broadcasting company “Deutsche Welle”. This interview can be found on the internet here.

At the center of this interview was the current lawsuit of folksinger and music composer Neil Young against DONALD J. TRUMP FOR PRESIDENT, INC. because Donald Trump’s campaign company is using Neil Young’s musical works as background music during Donald Trump’s political rallies.

Performing rights societies are the owners of the economic rights of copyrights

As Atty. Dr. Christian Seyfert assumes, likely, this lawsuit does not have a solid basis. Music composers and their music publishers are typically members of performing rights societies. In Germany, this rights society is GEMA. In the US, the three major performing rights societies are ASCAP, BMI, and SESAC. Neil Young and his music publishers are (very likely) a member of one of these three performing rights societies. Neil Young and his music publishers as members would have transferred the economic rights regarding Neil Young’s music compositions to their performing rights society. Whoever publicly performs music (radio stations, concert managers, event planners, etc.) can then license the respective music composition for public performance from the performing rights society that has the music composition in its catalog. Likely, the DONALD J. TRUMP FOR PRESIDENT, INC. has acquired such a performing rights license from the respective performing rights society. The performing rights society collects the license fees and later distributes the money to the music composers and music publishers. Thus, very likely, the DONALD J. TRUMP FOR PRESIDENT, INC. has not infringed upon Neil Young’s copyrights in his music.

Comparing the US copyright system with the copyright system in Germany

In the US, the copyright is purely an economic right. Personality rights are not part of the US copyright. On the contrary, in Germany, for example, the German copyright consists of an economic prong and a moral rights (personality rights) prong. According to Atty. Dr. Christian Seyfert’s belief it would be far easier for a music composer to stop the usage of his song for a political event in Germany. The music composer could claim that he does not share the views of the political party and his German personality rights part of his copyright is violated by the use. The moral rights (personality rights) of a German copyright are not handled by the GEMA. Moral rights (personality rights) always stay with the music composer.

The one-prong purely economic copyright system of the US – as a basic rule – does not have morals rights (personality rights) as parts of a copyright. Therefore, music composers have almost no chance to stop political campaigns in the US from using their song material. The Rolling Stones had in the past put enormous pressure on the respective performing rights society to not license their song material to political campaigns. And, as I have heard, the Rolling Stones were successful in the past. Their performing rights society had not licensed their song material anymore to political campaigns. So, Neil Young should do the same. He could say to his performing rights society that he will terminate his contract with them if they continue to license his song material to political campaigns.

State law rights of musicians in the US

The U.S. Copyright Act is a federal law that applies in the entire US. In addition, there is state law in each State of the United States that may give artists/celebrities additional rights. For example, California has relatively strong personality rights (privacy) protection that may be used by music composers when they feel their personality rights have been violated by playing their music at a political rally in California. However, there is no court decision in any state of the US where a music composer was successful with such a claim. This would not be a copyright case then, but a case based on a personality rights (privacy rights) violation. If Neil Young will base his lawsuit also on the violation of state law personality rights violations committed by the DONALD J. TRUMP FOR PRESIDENT, INC., then this might give him an additional argument. Then it would not matter that the DONALD J. TRUMP FOR PRESIDENT, INC. had acquired a copyright license from a performing rights society for money because the state law personality rights are independent of the federal Copyright Act.

By the way, there are other States, like e.g. Texas and Wyoming, that do not have the same high standard of personality rights (privacy) protection for artists as it exists in California or New York. So, the chances of success may be influenced by where the political rally is actually taking place.

Stronger copyright protection in Germany

Atty. Dr. Christian Seyfert personally hopes that Neil Young will be successful. A court verdict would set a precedent for better personality rights protection of music composers and artists in the US against unwanted political (ab-)use of their music. In Germany, these moral rights/personality rights are the second strong prong of a copyright. So, in Germany, music composers and artists may base their claims on a moral rights copyright violation if they do not want that their music is (ab-)used by a political campaign. In Atty. Dr. Seyfert’s judgment, music composers, and artists in Germany presently have better chances of winning against the unwanted (ab-)use of their music by political campaigns than in the US.

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