Political figures and the appropriation of others' music*

Abstract

Singers who achieve professional notoriety often do so in a large part because of well-known recordings that feature their singing talents. Significant segments of the public recognize the voices and associate those recordings - and perhaps the underlying songs as well - with the singers. During election seasons, musical performers have discovered to their dismay that songs and recordings the public associates with them have been used by a political candidate whose views or public persona the performers find highly objectionable. These uses occur in campaign ads or at campaign rallies, as the candidate seeks to convey a message about himself or his opponent, or to set a certain tone for a campaign event. Objecting musical artists frequently contend that the candidate has impermissibly appropriated their public identities and musical efforts in order to further his political purposes. They also express concern that the public would erroneously regard them as supporting the candidate or as holding views matching those of the candidate. History tells us that such political-use-of-music controversies, having arisen during the 2016, 2012 and 2008 election seasons (as well as in earlier ones), are sure to resurface in the run-ups to the 2018 mid-term elections and the 2020 presidential battle. Disputes in which musical artists object to the aforementioned actions by political candidates often play out in the media and sometimes in the court. The legal treatment of such disputes tends to be less than clear, however. Copyright law sometimes comes into play but often does not because the singer featured in a well-known recording of a song may not own the copyright on the song and almost certainly will not own the copyright on the recording. Even when copyright law does apply, certain concepts and principles, including the fact-specific fair use doctrine, make the likely outcome of a particular dispute difficult to predict. Other legal theories - chiefly the state-law-based right of publicity and false endorsement under the federal Lanham Act - potentially apply, but again there is uncertainty. Courts have disagreed over whether uses of music in political contexts are sufficiently commercial to warrant liability under those legal theories and over the role the First Amendment should play if the political candidate seeks to invoke it as a defense. After exploring the lack of clarity in the legal treatment of political-appropriation-of-music cases, the article examines ethical issues in an effort to identify behavioral guidelines that would be useful even if they do not carry the force of law. These issues include the following: whether notions of ethical behavior suggest a need for the relevant musical artist’s consent (regardless of whether controlling legal principles would, or would not, require consent); whether the political user should honor objections by a songwriter or performer (again, regardless of whether legal principles would so require); and whether the use of a musical artist’s work or identity as a means to achieve political ends raises significant ethical questions even when that use could be deemed lawful. As the article indicates, Kantian perspectives provide helpful ways of examining these questions. The article also provides ethics-focused analyses of relevant questions generally seen as purely legal in nature. Most notably, the article proposes viewing political appropriations of music through a moral rights lens. Because federal law recognizes moral rights only with regard to the forms of visual art specified in the Visual Artists Rights Act (VARA), there are no moral rights to enforce as a legal matter in cases of the sort addressed in the article. Principles set forth in VARA have significant ethical underpinnings, however. If borrowed for application in the political-use-of-music setting, those principles would serve as useful components of an ethics-focused moral rights analysis and related recommendations.