Bringing McCain-Feingold to the Music Business?
(Or: “Bringing Kelo to Copyright?”)
Two law professors suggest exactly that:
After vice presidential nominee Sarah Palin finished her big speech at the Republican National Convention, the 1977 song “Barracuda,” by the band Heart, blared out over the roar of the crowd. Convention organizers chose the music to highlight Palin’s high school basketball-team nickname, “Sarah Barracuda.” But Heart’s songwriters, Ann and Nancy Wilson, were less than pleased.
…
Artists have frequently spoken out against John McCain’s presidential campaign for using their songs without their permission.
There are two distinct issues here. First is, as John Marshall might say, what the law is:
Almost all recording artists make their songs available for use via a “blanket license” from firms such as ASCAP (the American Society of Composers, Authors and Performers) or BMI (Broadcast Music Inc.). … The McCain campaign has continued to play “Barracuda” since the Republican convention precisely because it cleared the license for such use with ASCAP.
Second is what the law ought to be:
There is an inherent tension between copyright law — which tells us what we cannot say, sing or perform — and the First Amendment, which protects against state censorship. In this case, the First Amendment must win. Rich and varied political speech — no matter how distasteful to recording artists or their fans — must prevail and stay free.
While copyrights should be respected, artists who abuse copyright to attempt to muzzle politicians’ speech are sacrificing the broader interest for their own feelings and agendas.
…
Artists’ copyrights are important, but the vibrancy of our political discourse is absolutely central.
This is, of course, utter nonsense.
The purpose of copyright is not, as the authors suggest, “to help artists get paid.” The purpose of copyright (and patents) is to secure private property rights.
If I create something, then it is my property — with the highest of all property rights: the right to exclude. If I choose not to exclude (i.e., to instead try to extract the maximum possible profit from my property by entering into a “blanket license”), then that is my prerogative. I may later regret that decision upon discovering that my work is subsequently used — with my contractual consent — in a way to which I later object. But that is beside the point. (In this sense, the McCain campaign is correct: they paid for the use of the songs, so more power to them.)
If, on the other hand, I value artistic control over maximum profit, then that is also my prerogative. One option is not necessarily “better” in every instance; it depends entirely on the artist’s subjective preferences. And no one is entitled to suggest that “the vibrancy of our political discourse” should give anyone the authority to make the decision for me.
No one would dare suggest that a politician has a right to hold a rally on my front lawn without my permission. No one would dare suggest that a politician has a right to use my image in a campaign commercial without my permission. Equally absurd is the notion that a politician has a right (in the absence of a license) to use my intellectual property without my permission. To label respect for intellectual property rights an “attempt to muzzle politicians’ speech” is insolence on a par with McCain’s terrifying use of air quotes when discussing First Amendment rights.
Note however an intriguing distinction: McCain-Feingold restricts the right (i.e., of campaign contributors) to give to politicians — supposedly for the sake of “better” campaigns. The “no copyrights” proposal restricts the right (i.e., of artists) to withhold from politicians — supposedly for the sake of “better” campaigns. Whatever it takes, I guess.
The notion that individual rights can be arbitrarily revoked whenever some central planner wannabe, or majoritarian mob, thinks it would be neat-o to do so is to say that there are no individual rights, period. That way madness lies. The most straightforward mechanism to ensure “better” campaigns is to conduct them in a way that respects individual rights. And that includes property rights generally and intellectual property rights specifically. The status quo is perfectly fine, thank you very much.
Filed under: First Amendment - Speech, Law, Politics, Property Rights
A law professor wrote that inane First Amendment argument? That's disturbing. I don't need a degree in law to understand that the First Amendment grants ME the right to (more or less) say what I want, but not the right to make YOU say it for me.
He's right. The constitutional purpose of copyright law is to give people incentive to create with the intention that eventually the creation may be used freely by anyone. Despite the popular designation "intelectual property" copyright and patents are not property. You do not (and cannot) own how a series of words or notes are strung together. At best, under the law, you have the privilege to decide how new copies are made and distributed.
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
The purpose of copyright is exactly as we wrote it. Sorry if the facts don't fit your wishes.
Copyright is not a simple "property right." It's far more interesting and complex than that.
But basically, it's about creating scarcity, creating the possibility for a market to develop, creating the potential for revenue, and thus serving as an incentive to create.
Nothing about a political use of a song disturbs that incentive system.
There is little case law on these points. But what exists is clear: political speech trumps copyright claims because rich political speech is a public good and moral rights are not.
Kaeru is completely correct.
Siva
Prof. Vaidhyanathan,
You made a First Amendment argument, not an Article I argument.
Sorry if the Constitution doesn't fit your wishes.