Eamonn Forde examines what Trump’s administration did for the benefit – and detriment – of the music industry, and where things might stand under Biden.
It starts with brimming optimism, but where it goes after that is less certain.
When a new president is elected in the US, assorted industries – long in the tooth in the protracted dynamics of Washington lobbying – step forward with best wishes as well as a wish list of their own.
As President Trump prepared to take office at the start of 2017, a coalition of music industry bodies sent him an open letter urging him to prioritise the enforcement of intellectual property laws, calling IP “a driving force in today’s global economy of constant innovation”. The letter was strategically scheduled to arrive the day before the president-elect was due to meet major players in Silicon Valleywho headed up companies that music rightsholders wanted to do more to protect their rights, in particular stemming piracy and closing the value gap.
“With the rise of the digital economy, it has become even more critical that we protect intellectual property rights and preserve freedom of contract rather than create regulatory barriers to creativity, growth, and innovation,” said the music bodies at the time.
It added, “We hope you will lead the effort to assure American creativity is encouraged, invested in, protected and fairly compensated in a manner that carries out the exclusive rights guaranteed in the Constitution to those who, with the genius of their mind, form the cultural identity of our great nation.”
While industry organisations were (initially, at least) being courteous towards the new president (even if that left deep teeth marks on their tongues), musicians were much less deferential to protocol. A number of them quickly released tracks that lambasted Trump, his policies and his ideologies. There were so many in the opening months of his presidency that SF Weekly gathered them all together in a feature it simply headlined “The Music Industry Hates Trump”.
Despite reservations – at least behind closed doors – the music business did get some of the things it was lobbying for from the Trump administration, the most significant of which was the signing of the Music Modernization Act into US law in October 2018. It was an issue that united both major political parties, having been unanimously voted through the US House of Representatives as well as the Senate. This led to the establishment of the Mechanical Licensing Collective to permit blanket licensing to DSPs in exchange for increased payments to rightsowners.
The music business did get some of the things it was lobbying for from the Trump administration, the most significant of which was the signing of the Music Modernization Act into US law in October 2018.
The new legislation also stated that artists pre-1972 should be paid when satellite and digital radio play their songs, with the producers and engineers on those songs also now due a payment.
Rights bodies and DSPs presented a united front when the law was changed, regarding this as a historic achievement and a solid pathway to the future. Working out the finer details of its implementation was not, however, without its pain points in the early months; but two years on and it was being hailed by the Recording Academy as a “victory for creators’ rights [which] ushered in a new era of fair compensation for music makers” as “some of the bill’s biggest benefits are starting to materialize”.
While Trump did not land a decisive legislative haymaker on the titans of US tech (as many music rightsholders might have wanted), he did turn the ownership of TikTok into a combustible political issue. He signed an executive order in August last year, giving TikTok’s parent company ByteDance until 20th September 2020 to sell off its American arm to a US company. WeChat was also targeted as part of a wider crackdown on Chinese-owned companies in the US.
“[T]he spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China continues to threaten the national security, foreign policy, and economy of the United States,” said Trump to justify his actions. Given music’s centrality to TikTok and the fact it had around 80m users in the US at the time, a ban could have been disastrous to the service as well as to rightsowners who were signing licensing deals with it.
A sale of 20% of the company to Oracle and Walmart had been tabled but legal disputes and contractual wrangles since have meant the issue outlasted Trump’s presidency. The issue, therefore, has landed on the desk of President Biden to resolve. It is expected, however, that a less combative approach – and certainly a less public one – will be pursued by the Biden administration here.
“There’s no regulatory pressure to rush through a sale, now that the deadlines imposed by the Committee on Foreign Investment in the U.S. have lapsed without enforcement,” argued Bloomberg at the end of January. “The chances are also slim that Trump’s parallel order to ban the app will go into effect, after multiple judges suggested they disagreed with the government’s legal rationale to do so. TikTok’s massive business in the U.S. is still at risk, but the pressure on the company has lightened at least for now.”
There are now claims that the TikTok sale could be postponed further or even scrapped completely, with the BBC suggesting that “any postponement could signal a softer approach towards Chinese tech giants from the new Biden administration”. The categorical approach and unchecked ire of the Trumpian policies here could give way to a more measured and nuanced approach from the new president.
Trump’s biggest test for the nation came with the global pandemic and, even accepting that this was a rolling crisis that most major governments severely struggled with (and therefore judging his performance through that lens), his handling of it was nothing short of catastrophic. Artists and the live business lobbied hard for economic support across all parts of the live sector, calling on the president to help save the “hundreds of thousands of people whose livelihoods depend on the live music business”. It was a hard sell.
For a president that did not appear to like much music, Trump was keen to use it in his campaign rallies, with the Village People’s ‘YMCA’ proving a recurring theme despite the iconography and message of the group seemingly falling on deaf ears (and their music triggering some arhythmic dancing).
What his use of music did achieve was to unite a multitude of artists (or their estates) around a single cause – namely demanding that he stop using their music at his rallies.
What his use of music did achieve was to unite a multitude of artists (or their estates) around a single cause – namely demanding that he stop using their music at his rallies. REM, Neil Young, The Rolling Stones, the Prince estate, the Tom Petty estate, the Leonard Cohen estate, Adele, Elton John, Queen, Rihanna, Guns N’ Roses and more all demanded he stop associating them with his presidency, with many issuing cease and desist letters or starting legal action against him.
It all reached such a fever pitch that PROs in the US suggested that artists could cauterise use of their music in such contexts by carving out certain titles and excluding them from a political entities license. Music industry lawyer Dina LaPolt (who have previously battled Trump on behalf of Aerosmith’s Steven Tyler on this very point) said that licensing exclusions do not work here and the most effective route was to use the Lanham Act (which relates to federal trademarks) and pursue a case along the lines of music use creating the false impression of an endorsement. In terms of explaining the intricacies of licensing to the general public, forcing clarity on this point may be Trump’s greatest (inadvertent) legacy here.
The final days of his campaign saw a very public estrangement from the music industry for Trump. Following the storming of the Capitol building by Trump supporters on 6th January, three US music industry bodies (the Music Artists Coalition, Black Music Action Coalition and Songwriters Of North America) wrote to Vice President Mike Pence, demanding he invoke the 25th Amendment and remove Trump from office.
They eventually got their wish when his presidency ended – not by force or intervention but rather through the due process of the ballot box (although Trump still maintains, despite zero evidence to support his claims, that fraud bumped him from office).
As President Biden prepared to move into the White House, the music industry sent him – as they did with Trump – an open letter, undoubtedly written with less tense fingers and fewer gritted teeth.
A pan-industry open letter at the end of November emphasised – as it did when Trump prepared to take office four years earlier – the need for policies that protected their IP.
“We are particularly appreciative of your consistent dedication to the protection of intellectual property,” the letter said. “As you work with your transition team, we hope and trust that you will continue to recognize the valuable contributions of our country’s creative sector and the importance of securing laws and regulations that protect American creativity.”
It also urged Biden to offer support to an industry floored by Covid. “We must ensure this quintessentially American industry survives the pandemic while also securing a legitimate marketplace for these performing artists and songwriters in the future,” it said.
In stark contrast to the election of his predecessor, musicians were much more publicly effusive about his election, falling over themselves to have their music used in his campaign ads and to perform at his inauguration. How different it all seemed.
If some ways, the Biden ticket was pushing on an open door with regard to the music business (and not just because of its antipathy towards Trump) – and much of that was down to Vice President Kamala Harris and her deep connections with key music business figures that had been nurtured over years.
Across most parts of the industry there is now enormous positivity that this is an administration that can help it – or, at the very least, listen patiently and sympathetically to its concerns and needs.
Across most parts of the industry there is now enormous positivity that this is an administration that can help it – or, at the very least, listen patiently and sympathetically to its concerns and needs. The Copyright Alliance says that Biden has a solid track record in anti-piracy activities dating back to the days of P2P, although it notes that the “Obama administration was not favorable toward the copyright interests of creators” and had a close relationship with the likes of Google (during which time, of course, Biden was Vice President).
There is still that tension between the needs of Silicon Valley and the needs of Tin Pan Alley and it cannot be presumed that a president will side explicitly and totally with one side over the other. The devil will be in the detail – as well as in the balance as two different sectors push for their respective interests in Washington.
“Regulation is coming to Big Tech, and rightfully so,” is how Michael Hardaway, a former Democratic leadership aide to Representative Hakeem Jeffries put it when discussing the topic with Billboard. “But it should be with a scalpel, which is the Democratic plan, as opposed to the sledgehammer, which is the Trump/Republican plan.”
The other big uncertainty is in regard to capital gains taxation and this could derail the sales bonanza around music catalogue sales that reached fever pitch with Bob Dylan selling his entire music publishing catalogue to Universal Music Group at the end of 2020 for an estimated $300m, followed by Neil Young selling 50% of his publishing to Hipgnosis in January.
It has been widely speculated that sales on this scale were happening with such velocity in order to avail of taxation rates that looked like they could be significantly upped by the Biden administration.
Under Trump, the sale of a huge catalogue would be subject to a tax rate of 20% of the sale price (being treated as a long-term capital gains asset); but Biden had put on his campaign website ahead of the election that any sale of $1m or over could be subjected to a 37% capital gains tax. This is the great unknown here but could see the brakes being slammed on the headline-grabbing deals of 2020. These sales were not just about heritage acts seeking an early cashing in of their pension pot – it was also a canny act of taxation speculation. Taking home 63% of a $100m sale in 2021 is significantly less attractive than taking home 80% if the deal had happened while Trump was still president.
Bob Dylan once sang, “But even the president of the United States sometimes must have to stand naked.” He also sang, in the same song, that “money doesn’t talk, it swears”. Holding the president to account is one thing, but bowing to the command of cold cash is another thing entirely.
There are rumours in the industry that Biden might settle on a compromise tax rate somewhere between 20% and 37%. This all suggests a form of diplomacy that would have been anathema to Trump and, as such, one that could auger well for the next four (or eight) years.
It is unlikely that the music industry will see its full wish list ticked off item by item under Biden or even force through a meet-in-the-middle consensus. Dissent will happen and criticisms will be fired out. These are the certainties of politics. But while it may disagree from time to time with Biden and Harris (or feel thwarted by them as Big Tech out-lobbies them), it is a pretty safe bet that the music industry will not find itself in the grim position of writing letters calling for a sitting president to be removed from office. For this, at the very least, we should be thankful.