As seems to happen during every federal election campaign season, we're seeing a new round of controversies emerge as politicians seek to harness popular music for their own purposes.
There are two kinds of controversies. One involves public performance at rallies and other campaign events. Usually, these performances are licensed under a collective license issued by ASCAP and BMI. The recent complaint issued by Heart against the McCain-Palin campaign for use of the song "Barracuda" falls into this category.
The second involves synchronizing music for use in viral videos on video-sharing sites. Warner Music issued a take-down notice to YouTube for a McCain ad that used Franki Valli's "Can't Take My Eyes Off of You". In these disputes, the use is not licensed and is therefore infringing unless it is a fair use.
Query whether, from a free speech perspective, it is appropriate to let the copyright license status cause these cases to be treated differently? The answer would be yes if the artists' or copyright owner's interests were primarily economic. However, because the concern about implied endorsement is heightened in the campaign setting, should the artist's or copyright owner's interest in being free from an unwanted association be given greater weight while also acknowledging the campaign's desire to use popular culture as a means of connecting with voters?
So as a trial balloon I'm wondering whether copyright law and trademark law ought not be interpreted to yield a result under which campaigns should be free to use popular music at rallies and in connection with promotional videos so long as they prominently disclaim any implied endorsement from the songwriters or performers, regardless of whether such use is covered by a collective license.
I have some reservations about this particular solution, but it seems to me that we need a resolution to this recurring conflict that is medium-neutral and that targets the relevant expressive and economic interests on both sides.