Wednesday, November 3, 2010
For over two hundred years, political candidates have utilized the campaign song to instill positive messages in the minds of voters. In the early years, candidates commissioned songs specifically for their campaigns. Decades later, it became apparent that using a hit song with its original lyrics was even more effective. This use of copyrighted music has received mixed reactions from the authors of the works that the candidates have adopted. While some have been flattered, others have felt that such use distorts the original message they intended their works to convey.
This Note addresses the issue of authors in the latter category lacking a practical means to stop public performances of their works by political candidates with whose views they disagree. The underlying cause of this issue is that there is no violation of United States copyright law when a campaign “publicly performs” a song at its rallies, so long as it first obtains a blanket license from the performing rights organization (PRO) of which the copyright holder of the musical work is a member.
Recognition of moral rights by the United States would likely solve the issues that arise when a PRO issues a blanket license for a public performance that an author objects to, but has no way of preventing or enjoining under the status quo. However, given the historical attitude of the United States towards moral rights, their recognition in this country is highly unlikely. Thus, those in favor of moral rights should accept this reality and shift their focus away from advocating such legislative change, and towards the creation of alternative, extra-governmental approaches to protect the moral rights of copyright holders whose works are licensed for public performances for which permission would have been denied if sought directly.
Part I of this Note summarizes the history of Congressional and judicial treatment of moral rights in the United States, with an emphasis on the United States’ reluctance to offer protection on par with that offered in the majority of other countries in the world. Part II traces the history of PROs and the emerging role that such intermediaries have played in copyright law, to the point of their possible replacement of Congress as the de facto rulemaking bodies in this area. Part III points out how the justifications for blanket licensing of musical works are not applicable in the context of political events, and elaborates on why the United States’ failure to recognize the moral rights of copyright owners poses a problem worth addressing. Part IV proposes three alternative solutions to the problems that accompany the blanket licensing of political events - one statutory and two to be executed by the PROs. Part V offers some reflection upon what events should be considered “political” for purposes of the proposed solutions.
Download the article from SSRN at the link.