Peter Friedman
Associate Professor, Legal Analysis & Writing
Case Western Reserve University School of Law

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.

September 05th, 2008 | problem solving | 1 comment

The confusion (and, often, anxiety) that inevitably arises when confronting new and difficult problems

To allay anxiety caused by their inevitable confusion, I regularly explain to my students that any problem worthy of their professional expertise will require a period during which they do not have a clue how to solve the problem, when they feel completely confused.  I have to confess utter confusion regarding how this election will turn out.  On the one hand, a Democrat victory seems inevitable.  There is no one I know well who isn’t hurting these days.  The economy is in a shambles, prices on necessities are skyrocketing, we haven’t yet captured or killed Osama Bin Laden, Afghanistan is in chaos, what “victory” realistically constitutes in Iraq remains a mystery (do we really expect to walk out of their with a strong and democratic ally?) . . . I could go on.

At the same time, I would’ve been astounded during most of my life to think the U.S. would elect a black as President unless he happened to be a conservative Republican.  And my belief that a majority of U.S. voters would choose a Democrat this year runs up against that unshakeable feeling.  There are certainly people who will say their vote is based on race (and anyone who says otherwise really is out of touch with certain segments of the U.S.), but they are in a minority.  Others claim astonishment that people think their intentions are based on race even when all indications are otherwise.  Representative Lynn Westmoreland claims he is astonished that calling Barack and Michelle Obama “uppity” would be taken as a racist comment.

Others speak in a code maybe they themselves don’t realize is racist.  As reported in last week’s Cleveland Jewish News, a Cleveland mental health counselor, for example, is “’concerned not so much about Obama the man, but the influences he might be subjected to from Muslims. I know he was brought up as a Christian, but both his father and stepfather were Muslim, and there has to be some influence there,’ she maintains.  Although she also has serious reservations about McCain, she is ‘haunted’ by her concerns about Obama.’”

And then there are the people who’s financial motivations are difficult to separate from other motivations.  My son’s doctor yesterday asked me what I thought of Wednesday night’s Republican convention.  I said I thought it was “ugly.” He told me he thought it was excellent and that he doesn’t like “the people around Obama.”  Then he turned to my son and said, “You’re father’s a liberal.  He wants to make a lot of money and give it all away.”

I bit my tongue and stopped myself from saying, “Your doctor’s a conservative.  He wants to make a lot of money and keep it all for himself.”  But what do I expect from a loyalist to that a party that fraudulently claims Obama will will impose “painful tax increases on working American families” when in fact, as reported accurately by FactCheck.org, “Obama proposes to cut taxes for most individuals (81.3 percent of all households would get a tax cut), while raising them only for a relative few at the top”?

It’s difficult to separate people’s economic motivations from their more visceral motivations.  I can almost understand the people who make a lot of money and do not want to shoulder a fair burden of paying for the infrastructure, services, and schools necessary to a society that allows them and others to do so, but I cannot understand people like Mitt Romney (“It’s time for the party of big ideas, not the party of Big Brother!“) and Rudy Giuliani, the former mayor of New York City (“I’m sorry that Barack Obama feels that her hometown isn’t cosmopolitan enough. I’m sorry, Barack, that it’s not flashy enough.”). Check that — I can understand Rudy.  I once worked with Rudy.  I remember sitting across a desk from him and his eyes glazing over as I explained the results of legal research I had done for him.  His chief assistant was in the room, furiously taking notes.  I knew the assistant was the person I was reporting to while we were all pretending I was reporting to Rudy.  Rudy is a mediocre person wrapped in a remarkable amount of ambition.  I suspect Romney must simply be the same.  

The Republicans are, undeniably The Party in Power, Running as if it Weren’t.

Where will all of this leave us in November?  I don’t have a clue.  I need to follow the advice that I give to my students and not let this utter confusion cause me too much anxiety.