Peter Friedman
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Ruling Imagination: Law and Creativity

September 06th, 2008 | copyright and fair use | 2 comments

Sarah Barracuda? Not if Heart can help it.

From the Seattle Times:
Ann Wilson and Nancy Wilson posted a message Friday on their Web site condemning the use of their 1977 hit at the Republican convention. The song was played when McCain, the party’s presidential nominee, was joined onstage after the speech by his running mate, Alaska Gov. Sarah Palin. . . .  Republican officials didn’t ask for permission to use the song and would not have been given the OK if they had done so, the Wilsons said.

In a statement posted Friday on the EW.com site, the Wilsons wrote:

“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. The song ‘Barracuda’ was written in the late ’70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.”

I wonder, though whether the Republican Party’s use of the song isn’t fair use.  It’s political, non-profit speech, and it doesn’t seem as if it would have any negative impact on the market for Heart’s song.  Then again, the use does use a substantial portion of the song, and the song is a creative work.  Heart, presumably, could license the work for political and commercial purposes, though, so perhaps the use does have a negative impact on “derivative” markets for the song.  I think any hope Heart would have of winning an infringement case would depend on showing that. The matter is reminiscent of 1984, when Ronald Reagan “appropriated Bruce Springsteen’s Born in the USA, though in name only.  From Cnn.com:

In the heart of his 1984 re-election campaign, Ronald Reagan made a speech in Hammonton, New Jersey, and took the opportunity to invoke the name of one of the Garden State’s favorite sons.”America’s future rests in a thousand dreams inside our hearts,” the president said. “It rests in the message of hope in the songs of a man so many young Americans admire: New Jersey’s own Bruce Springsteen.”

Reagan — or his speechwriter — was likely thinking of one song in particular: “Born in the U.S.A.,” the title cut from Springsteen’s No. 1 album of the time. . . .But look deeper, and there was another dimension to “Born in the U.S.A.” The song was the ferocious cry of an unemployed Vietnam veteran.”Down in the shadow of the penitentiary/Out by the gas fires of the refinery/I’m 10 years burning down the road/Nowhere to run ain’t got nowhere to go,” Springsteen sang in a working-class howl.The singer wasn’t amused by Reagan’s appropriation of his work. “I think people have a need to feel good about the country they live in,” he later told Rolling Stone. “But what’s happening, I think, is that that need — which is a good thing — is getting manipulated and exploited.  You see in the Reagan election ads on TV, you know, ‘It’s morning in America,’ and you say, ‘Well, it’s not morning in Pittsburgh.’” The singer, who spent much on 1984 on a huge concert tour, dedicated ‘Born in the U.S.A.’ to a union local at one stop.