The Politics of Music: Droit Moral, if only…

John McCain’s campaign can’t catch a break when it comes to music.  Jackson Browne is suing the campaign for copyright infringement over the use of his song “Running on Empty” in a video prepared by a state party.  John Mellencamp sent a cease and desist letter over the use of the songs “Our Country” and “Pink Houses” at rallies.

And as anybody would expect, Ann and Nancy Wilson have issued a statement that they do not approve of the use of the Heart song “Barracuda” for Governor Sarah “Barracuda” Palin.   The song was blasted in the arena after Governor Palin’s acceptance speech during the Republican National Convention.

Having learned a few lessons the hard way, the McCain campaign announced that it had obtained the licenses required to perform and use the song.  I expect that the McCain campaign has read my primers on the public performance of music, and obtained the licenses required, if any, for the use of music.

But, according to the press obtaining the licenses does not placate the artists.  No, they want the campaign to stop using their music because McCain-Palin are to quote a friend “disgusting.”


Unfortunately for the Wilson sisters, Jackson Browne and all the other musicians and songwriters who may find their music playing at rallies or other events for candidates that they do not support, you really cannot stop the use if the venue or campaign has obtained blanket licenses from the performing rights organizations (the “PROs”).

The framers of the United States Constitution could have given you that right.  They could have adopted the Droit Moral, the “Moral Right.”  Instead they limited the rights of a copyright owner to economic rights.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (U.S. Const. Art. 1, Sec. 8 )

So as long as the songs in question have been licensed to a PRO and either the venue or campaign has a license from the PRO, a politcal candidate can perform music without regard to the protests of the songwriter.   Oh yeah, did I mention that since performers do not have a full performance right in the United States, they likely have no copyright claim to the performance of the music at rallies.

The Moral Rights differ in many ways from the economic interest granted in copyright.  First, moral rights remain with the creator of the work even after they have assigned 100% interest of the work to someone else.  Additionally moral rights run only to the creator, they can neither be assigned nor devised by will or testate.

The hypothetical often used in law school classes is that of the sculptor who creates a work on commission for a homeowner who has built a special setting for the piece.  The homeowner later sells the home and wants to take the sculpture with her.  The sculptor tells the homeowner au contraire she must leave the sculpture at the house because the space suits it perfectly.  The framers of the Constitution likely thought that such scenarios were absurd so they rejected the concept of Moral Rights.

The exception is, to a certain degree, visual artists have a degree of Moral Rights to satisfy the Berne Convention as set forth in the Visual Artists Rights Act.  Specifically, an artist has the right of attribution (i.e. that their name be noted) and the right to integrity (protection against mutiliation, distortion et al) to their works.

Also, the lack of moral rights does not mean that creators must license their works to every body who makes a request.  Where a direct license is required, the copyright owner may reject an opportunity for moral purposes.  Here, the McCain campaign is performing music publicly.  Either they or the venues have obtained licenses from the performing rights organizations for the use.

Had the Wilson sisters been objecting to the use of their song by a candidate in a country that recognizes Moral Rights, like France, their objection would likely keep the candidate from using the song in any fashion.  8)

About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.
This entry was posted in ASCAP, BMI, Copyright Policy, droit moral, moral rights, Music, Music Performance Licenses, performance royalty, SESAC and tagged , , , , , , , , , , . Bookmark the permalink.

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