The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment

Sarah Schacter

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On a Wednesday in September 2008, presumptive vice-presidential candidate Sarah Palin was introduced at the Republican National Convention in St. Paul, Minnesota for her much-anticipated speech accepting the Republican nomination.  Before she spoke, the rock band Heart’s classic song “Barracuda”1 was played for the energized crowd.  The song was played again after presidential candidate John McCain’s speech accepting the GOP nomination on Thursday.  “Barracuda” was used by the campaign as “a nod to Palin’s feisty reputation and to her high-school basketball-team nickname.”2  The performance of the song reached a large audience—according to the Nielsen Company, the Republican National Convention “had a reach of nearly 50% of U.S. households.”3

Ann and Nancy Wilson, Heart’s two front-women (who are also two of the four composers of the song), were not pleased that “Barracuda” was being used as a theme song for Palin, a controversial figure.  They reacted quickly, sending a cease and desist letter demanding that the campaign stop using their song.  In an interview with EW.com, Nancy Wilson protested, “I think it’s completely unfair to be so misrepresented.”4  Unfortunately for the Wilson sisters, however, the Copyright Act does not provide a remedy for the McCain–Palin campaign’s use of their song.  The RNC had purchased a venue-based “blanket license” from the American Society of Composers, Authors, and Publishers (ASCAP), which granted the RNC the right to perform “Barracuda” publicly in compliance with copyright law. 

The controversy surrounding the use of “Barracuda” represents only one of the many instances in which performers or songwriters protested the use of their works in conjunction with a political campaign.  Several such situations emerged during the 2008 presidential election cycle.  Sometimes, based on the circumstances, copyright law provides a clear remedy for a contested use.  Other times, however, an artist will have to look to other legal doctrines for a remedy.  This piece (and the full version of my note) use what I will term the “Barracuda scenario”—the scenario in which there is no copyright remedy available to the artist—as a model.  The Barracuda scenario presents a significant problem for the musical artist (both composers of musical compositions and recording artists)—whom I will refer to as the “Barracuda plaintiff”—because the lack of a remedy in such a situation has serious implications for that artist’s First Amendment interests.  Although there are other legal doctrines that the musical artist may invoke, these alternative avenues of relief are not only inadequate to protect the artist but also flawed in that they fail to fully address the unique First Amendment concerns that arise in such a scenario.  There is, thus, a lacuna in this area of the law—a “gap” that Congress must fill.  Congress should address this lacuna by providing a remedy that would protect the rights of musical artists not to associate, through their music, with the campaign of a candidate whose views they do not share. 

The issue of the unauthorized use of musical works in political campaigns is complicated by the unique, dual nature of the copyright in music, so some background is necessary. The legal landscape of music is “framed around the respective intellectual property rights of writers (as to songs) and artists (as to performances of songs).”5 The copyright in the musical compositions of songs is thus analytically distinct from the copyright in the sound recordings of the performances of songs.  The scope of the exclusive rights granted to the owner of the copyright in a sound recording is also significantly narrower than the scope of the rights granted to the owner of the copyright in the underlying musical composition that such a sound recording embodies.  Specifically, under § 114 of the Copyright Act, there is no public performance right in sound recordings.6 Therefore, a licensee must pay only the owner of the copyright in the underlying composition—but not the owner of the copyright in the sound recording—for a license to perform a sound recording publicly.  The RNC was thus not required under copyright law to purchase a license from the owner of the distinct copyright in the sound recording of “Barracuda” in order to “perform” (that is, to play) the song publicly.  Rather, the RNC was only required to purchase a license from the owners of the copyright in the musical composition.

A person seeking to license a musical composition in order to perform a song publicly will typically purchase such a license from one of the three “performing rights organizations” (PROs) in the United States: ASCAP, BMI, and SESAC.7  In the actual “Barracuda” incident, ASCAP had issued a blanket license to the RNC that permitted the campaign to play the song in the convention center without violating copyright law.  Thus, although Ann and Nancy Wilson both composed and performed “Barracuda,” they were left without recourse under the Copyright Act because (1) there is no general public performance right in sound recordings, and (2) the right to perform the musical composition had been granted under the blanket license.

American political candidates have been using music to enliven their campaigns for over two hundred years.  Both Franklin Roosevelt and Harry Truman used the song “Happy Days Are Here Again”8 in their campaigns, and William Henry Harrison’s supporters used a song written as an attack on his opponent, President Martin Van Buren, to great effect—Harrison prevailed in the 1840 election.  John F. Kennedy’s campaign used a modified version of Frank Sinatra’s hit single “High Hopes”9 with rewritten lyrics that advocated for Kennedy during the 1960 election.  Over the last few decades, campaigns have “increasingly turned to the power of established popular songs to drive home the candidate’s message.”10  When Ronald Reagan’s campaign played Bruce Springsteen’s “Born in the U.S.A.”11 (and referenced the singer by name) during the 1984 election cycle, Springsteen publicly objected. Despite Springsteen’s public protest, over the next two Presidential election cycles (1988 and 1992), campaigns maintained a casual attitude towards publicly performing popular songs at campaign events, typically neglecting to seek permission before doing so.

The 2008 presidential election cycle was rife with objections to music use on both sides of the aisle.  The McCain–Palin campaign received demands to cease playing the songs of at least nine other musical artists in addition to the Wilson sisters, including Jackson Browne, John Cougar Mellencamp, Van Halen, the Foo Fighters, Frankie Valli, ABBA, and Bon Jovi.  And now-President Barack Obama was not given a free pass either.  Sam Moore, of the Motown duo Sam & Dave, insisted that the Obama campaign cease playing “Hold On, I’m Comin’” at rallies.  The campaign complied with Moore’s demand voluntarily, so legal action was unnecessary.

The McCain–Palin campaign was not immediately willing to desist when it came to Jackson Browne’s song, “Running on Empty.”12  In contrast with the campaign’s use of “Barracuda,” the RNC “did not obtain a license, or seek or receive Browne’s permission to use” his musical composition “Running on Empty.”  Thus, Browne did have a copyright remedy available to him, although he filed suit alleging other causes of action as well: false association or endorsement under the Lanham Act, and violation of the California common law right of publicity. Only after McCain’s “fair use” argument was rejected by the court did McCain, the Ohio Republican Party, and the RNC agree to settle.13

This issue is not exclusive to presidential campaigns.  Don Henley, founding member of The Eagles, recently brought suit in the Central District of California against Charles DeVore, a candidate in the Republican primary for the United States Senate who was running to unseat incumbent Senator Barbara Boxer in California.  DeVore posted two campaign videos that used two of Henley’s songs, “The Boys of Summer”14 and “All She Wants To Do Is Dance,”15 on YouTube.  New lyrics were written for both songs, which criticized President Obama and Senator Barbara Boxer, respectively.  Henley sued for false association or endorsement under the Lanham Act, state unfair business practices, and copyright infringement with respect to “The Boys of Summer.”

Music is considered protected speech under the First Amendment.16  In Ward v. Rock Against Racism, the Supreme Court held that “[m]usic, as a form of expression and communication, is protected under the First Amendment.”17 Like all kinds of speech, music can also be specifically selected and used to express the ideas of others.  And the act of selecting and using a song that constitutes another person’s speech would, itself, likely be upheld as protected speech.  The question then becomes one of policy: When does such an act rise to the level of actual political speech—in the sense that it conveys a specific political message—thus outweighing the countervailing First Amendment interests of the musical artist?  In the Barracuda scenario, there are two First Amendment interests at play. From the perspective of the candidate, the act of selecting and using a song can represent an act of political speech. From the perspective of the musical artist, however, being compelled to associate with that candidate also represents a threat to her First Amendment interests.

The most obvious First Amendment interest at play in a Barracuda scenario is the political speech interest of the candidate. This interest is fundamental: “political speech is at the core of that protected by the First Amendment.”18 However, what is and what is not political speech can be difficult to define. There is also a competing interest at play when a political candidate uses a song or sound recording in connection with a campaign without express authorization: the right of nonassociation. The Supreme Court has recognized that laws compelling speech violate the First Amendment: “Just as there is a right to speak, so, it is clear, there is a right to be silent and refrain from speaking.”19  Additionally, as the Court noted in NAACP v. Alabama ex rel. Patterson, the freedom to associate in groups is also protected by the First Amendment.20  Out of these two rights—freedom from compelled speech and freedom of association—emerges a right against forced association (or a right of nonassociation).  The Supreme Court has also identified a negative association right that functions as a corollary to the positive right of association.  The most obvious function of this corollary is to allow groups formed for expressive purposes to exert control over their associations and their message by excluding individuals or groups who do not share the ideology that is at the core of their associative purpose. 

In Boy Scouts of America v. Dale, the Boy Scouts revoked the membership of James Dale, an adult member of the Boy Scouts, after learning that he was a gay rights activist.21  The New Jersey Supreme Court held that, under the New Jersey public accommodations law, the Boy Scouts must reinstate Dale.  The Boy Scouts appealed, and the Supreme Court held that applying the New Jersey law to force the Boy Scouts to reinstate Dale would violate the Boy Scouts’ First Amendment right of expressive association.  The Court held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”22

Some scholars have argued that Dale should be construed narrowly and that a broad construction would threaten equality in public accommodations.  However, an argument for an expansive understanding of the nonassociation interest does not present a threat to equal protection when simply identified as a rationale for Congress to protect the rights of individuals not to associate with a group. Other scholars have argued that Dale should be construed broadly, thus providing support for my position that a musical artist’s nonassociation interests are implicated when her composition or sound recording has been used in conjunction with a political campaign without express permission.  Martin Redish and Christopher McFadden argue that the narrow reading of Dale is myopic in that “it fails to acknowledge the many other contexts in which a right of non-association is properly recognized, for that right may be important in many instances, even when there exists no corresponding affirmative exercise of the right of political association.”23  Forced association, they argue, “risks demoralization . . . and breaks down the individual’s mental autonomy and intellectual integrity.”24  Forcing a Barracuda plaintiff to associate with a campaign harms her in a similar way—by appropriating her artistic voice and making her part of a message that she does not actually believe in.  As such, the Barracuda plaintiff requires protection from Congress that fills the lacuna and thereby ensures her nonassociation interests are protected. 

In addition to copyright, there are two related causes of action that the Barracuda plaintiff may pursue: a state law right of publicity claim, and a false endorsement claim under the federal Lanham Act.25  The right of publicity was developed by the courts to protect “the right of a person whose identity has commercial value—most often a celebrity—to control the commercial use of that identity.”26  The Lanham Act, on the other hand, primarily seeks to remedy consumer confusion; that is, “traditional trademark doctrine protects mark owners” where the use of that mark by another party is “likely to confuse the consuming public.”27  Although the right of publicity and the Lanham Act may seem to provide additional avenues of relief to a plaintiff without a copyright remedy, both remedies are, in fact, inadequate and neither provides a satisfactory solution to the Barracuda scenario.

The right of publicity does not provide an adequate remedy for the Barracuda plaintiff.  As a state-law remedy, the availability and scope of the remedy varies from state to state, potentially limiting the relief afforded to a Barracuda plaintiff.  Further, in the Barracuda scenario, a state law right of publicity claim could be at risk of being preempted by the federal Copyright Act.  Additionally, the First Amendment approach courts have taken in the right of publicity context is a poor fit for the Barracuda scenario, which involves an unusual clash of First Amendment interests that should be evaluated under a standard that is specifically tailored to address the problem. And finally, as a practical matter, the Barracuda plaintiff is unlikely to prevail on a right of publicity claim in light of the commercial use requirement. (Courts tend to draw the line between a use that violates the right of publicity and a use that is protected by the First Amendment based on whether or not the use was commercial, and political uses are difficult to characterize as commercial.)

Initially, the Lanham Act seems like a better doctrinal fit for the Barracuda scenario because it seeks to remedy a false association or endorsement. Courts have construed § 1125 of the Lanham Act broadly to encompass political uses,28 which, for a time, boded well for the Barracuda plaintiff.  However, the recent decision of the District Court for the Central District of California in Henley v. DeVore, which granted DeVore’s summary judgment motion on Henley’s Lanham Act claims,29 created a major barrier for a Barracuda plaintiff seeking relief.  Under Henley, the mere performance of a sound recording cannot violate § 1125.  Further, the Henley court specifically applied this rule in the context of a political campaign.  Thus, if followed, Henley would preclude a Lanham Act claim for the similarly situated Barracuda plaintiff.

Additionally, there are significant First Amendment problems with the Lanham Act. Courts have applied a number of different doctrines when attempting to protect the First Amendment interests of defendants in Lanham Act cases.  These doctrines are “overlapping, confusing, volatile, and cumbersome,”30 and none of the various tests crafted by the courts provides sufficient guidance on evaluating claims involving political speech and competing First Amendment interests.  First, the tests do not require a determination of whether a political campaign’s use of the song or sound recording actually constituted political speech. Second, the tests do not require an inquiry into the difficult-to-quantify harm suffered by the plaintiff when she is forced to associate with a campaign.  The injuries that the Lanham Act is designed to remedy are those to the public and those inflicted upon a business when some party (typically a competitor) attempts to profit from that business’s good reputation.  This entirely different focus lessens the probability of fair, consistent outcomes in Barracuda scenarios. Simply put, the Lanham Act is not the right doctrine to address this problem.

Congress should enact legislation that fills the lacuna by creating a new, substantive approval right for all musical artists. In doing so, Congress would ensure that the nonassociation interests of musical artists are protected by preventing the artists from being included as part of a political message against their will.  The legislation I propose is a stand-alone statute that requires a political campaign to acquire specific approval from the musical artist or artists who wrote the song, performed the song, or, as was the case in the actual Barracuda incident, both wrote and performed the song.  This new approval right would stand in spite of any existing blanket licenses, such as venue-specific licenses, that the campaign has acquired from one of the PROs.  The right would be similar to a copyright but narrower because it would prevent only a specific type of use—it would only grant the musical artist the power to prevent or enjoin the use of her song in a political campaign. 

However, this new approval right would not be absolute, even in the narrow context of political uses.  Under the proposed statute, the political candidate who believes that his use constitutes true political speech would be able to take his chances by relying on an affirmative defense. The test that the court would apply to evaluate this defense would be based entirely on First Amendment interests. The court would consider the nonassociation interests of the artist and the competing speech interests of the candidate, focusing specifically on whether the use actually constituted political speech.

Political speech is difficult to define.  Cass Sunstein has proposed a definition of political speech that limits the category to speech that is both intended and received as a contribution to public deliberation about some issue.”31  This is the standard under which a claim of political speech would be analyzed under the proposed legislation.  The more related the use of the song or sound recording is to a discrete issue, the more weight the political speech interest should be given.  Using “You Can Call Me Al” to introduce Al Gore,32 or “Hold On, I’m Comin’” to introduce Barack Obama33 are uses that are unrelated to a political issue up for public debate.  Rather, the campaigns used these songs merely to generate excitement about the candidate by giving him a theme song, and to raise the audience’s energy level by playing a crowd-pleasing song before a speech. I do not mean to imply that a campaign should not be able to use music to energize a crowd or to help the public get to know a candidate. Of course campaigns should be able to do this. But when a musical artist objects to such a use, there are other First Amendment issues at stake that must be taken into consideration.

On the other end of the spectrum, the McCain–Palin campaign’s use of Jackson Browne’s “Running On Empty” as part of a rebuttal to one of Obama’s suggestions regarding energy policy arguably did constitute political speech, because it conveyed a message specific to that issue. 

The use of “Barracuda” in the actual Barracuda incident falls in the former category of nonpolitical speech.  “Barracuda” functioned as a theme song for Sarah Palin because it alluded to her high school nickname.  In fact, the use of the song was entirely unrelated to its actual meaning: the song was “written in the late 70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women,” with the “barracuda” representing the music industry.34 Arguably, the use of the song had a second meaning in that the song was communicating an aspect of Palin’s personality.  However, because this use of “Barracuda,” although potentially communicative, did not relate to a discrete political issue that was the subject of national discussion, the McCain–Palin campaign’s interest in using the song is outweighed by Ann and Nancy Wilson’s significant nonassociation interests. 

The proposed legislation would encourage political campaigns to obtain approval from the musical artists responsible for the creation of a song or sound recording before featuring it as part of a campaign message.  It would do so by granting the musical artist a narrow approval right over her music that would apply exclusively in the context of political uses.  However, this right would not be absolute.  Under the proposed statute, the candidate would be able to invoke an affirmative defense that would protect the use of the song if that use communicated a discrete political message and thus constituted political speech.  Political speech is at the heart of what is protected by the First Amendment because we rely on it to foster an informed electorate which, in turn, ensures the strength of our democracy.  But the selection and use of music that is devoid of any political message is not political speech at all.  Such a use, which merely exploits a song’s popular appeal and energy without commenting on a political issue, need not and should not be protected. 

Acknowledgments: I would like to thank Professors Julie Ross and Michael Huppe for their invaluable guidance and feedback throughout the development of this Note. I would also like to thank David Yellin and the editors and staff of The Georgetown Law Journal for all of their hard work. Finally, I would like to thank my parents, Kenneth Schacter and Maura Wogan, and my brother, Brian Schacter, for their advice, support, and encouragement.

Copyright © 2011, Sarah Schacter.

Sarah Schacter is a 2011 J.D. Candidate at Georgetown University Law Center; Harvard University, A.B. 2005.

  1. HEART, Barracuda, on LITTLE QUEEN (Portrait Records 1977).
  2. Sean Michaels, Sarah Palin’s Heart-less Use of Soft Rock, guardian.co.uk (Sept. 8, 2008, 11:41 AM), http://www.guardian.co.uk/music/2008/sep/08/sarah.palin.heart.soundtrack.
  3. Nielsen, Nielsen Examines TV Viewers to the Political Conventions 2 (Sept. 2008), http://blog.nielsen.com/nielsenwire/wp-pontent/uploads/2008/09/2008_convention_tvr-final1.pdf (“The audience sizes were nearly identical for the DNC and RNC.”).
  4. Whitney Pastorek, Exclusive: Heart’s Nancy Wilson Responds to McCain Campaign’s Use of “Barracuda” at Republican Convention, EW.com (Sept. 5, 2008, 5:44 AM), http://hollywoodinsider.ew.com/2008/09/05/heart-responds/ (In a written statement, Nancy and Ann Wilson said, “‘Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song “Barracuda” no longer be used to promote her image.’”).
  5. John M. Rolfe Jr. & John E. Murdock III, On the Record: How Music Connects with Law, 15 Bus. L. Today 17, 17 (2006).
  6. 17 U.S.C. § 114 (2006).
  7. See Rolfe & Murdock, supra note 5, at 18.
  8. MILTON AGER & JACK YELLEN, Happy Days Are Here Again (EMI Robbins Catalog, Inc./Advanced Music Corp. 1929).
  9. FRANK SINATRA, High Hopes, on ALL THE WAY (Capitol Records 1961).
  10. David C. Johnston, Recent Development, The Singer Did Not Approve This Message: Analyzing the Unauthorized Use of Copyrighted Music in Political Advertisements in Jackson Browne v. John McCain, 27 CARDOZO ARTS & ENT. L.J. 687, 688 (2010).
  11. BRUCE SPRINGSTEEN, Born in the U.S.A., on BORN IN THE U.S.A. (Columbia Records 1984).
  12. JACKSON BROWNE, RUNNING ON EMPTY, on Running On Empty (Asylum Records 1978).
  13. See Jackson Browne Settles with GOP over “Running on Empty” Ad Use, Rolling Stone (July 21, 2009, 1:48 PM), http://www.rollingstone.com/music/news/15784/90732. Browne received damages, a public apology, and “a pledge that the Republicans will ‘respect and uphold the rights of artists . . . and obtain permissions and/or licenses for copyrighted works where appropriate.’” Id.
  14. DON HENLEY, The Boys of Summer, on BUILDING THE PERFECT BEAST (Geffen Records 1984).
  15. DON HENLEY, All She Wants To Do Is Dance, on BUILDING THE PERFECT BEAST (Geffen Records 1984).
  16. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
  17. Id.
  18. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 11.1, at 927 (3d ed. 2006).
  19. Id. § 11.2.4.3, at 972.
  20. 357 U.S. 449, 460 (1958).
  21. 530 U.S. 640 (2000).
  22. Id. at 648.
  23. Martin H. Redish & Christopher R. McFadden, HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association, 85 MINN. L. REV. 1669, 1672 (2001).
  24. Id. at 1695.
  25. 15 U.S.C. § 1125 (2006).
  26. Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1098 (9th Cir. 1992) (citing Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 824–25 (9th Cir. 1974)).
  27. Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 STAN. L. REV. 1161, 1191 (2006)
  28. See, e.g., Browne v. McCain, 612 F. Supp. 2d 1125, 1131–32 (C.D. Cal. 2009).
  29. Henley v. DeVore, No. SACV 09-481 JVS (RNBx), 2010 WL 2533388, at *23 (C.D. Cal. June 10, 2010).
  30. William McGeveran, Rethinking Trademark Fair Use, 94 IOWA L. REV. 49, 51 (2008).
  31. Cass Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 304 (1992).
  32. PAUL SIMON, You Can Call Me Al, on GRACELAND (Warner Bros. Records 1986).
  33. SAM & DAVE, Hold On, I’m Comin’, on HOLD ON, I’M COMIN’ (Stax/Atlantic Records 1966).
  34. Whitney Pastorek, Exclusive: Heart’s Nancy Wilson Responds to McCain Campaign’s Use of “Barracuda” at Republican Convention, EW.com (Sept. 5, 2008, 5:44 AM), http://hollywoodinsider.ew.com/2008/09/05/heart-responds/.

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