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

34 Pages Posted: 19 Oct 2010 Last revised: 12 Jan 2011

See all articles by Sarah Schacter

Sarah Schacter

affiliation not provided to SSRN

Date Written: August 1, 2010


This Note is about the First Amendment issues that are raised when political candidates use music in conjunction with political campaigns without the consent of songwriters and recording artists. 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. Although there are other doctrines that the musical artist may invoke, this Note will demonstrate that these alternative avenues of relief are inadequate to protect the artist and 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.

This Note argues that 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. I will discuss this First Amendment-based nonassociation interest, which is entangled with the related interest against compelled speech. These two interests, taken together, constitute a strong reason for Congress to fill the lacuna, thus protecting musical artists. Such a remedy, however, must also take into account the competing First Amendment interests of the political candidates who seek to express their political views through music.

Part I of this Note will set the stage with a discussion of the relevant portions of the Copyright Act, followed by a historical survey of the use of music in political campaigns. Section I.A will explain how the statutory structure of copyright law, in tandem with practices inherent to the music industry, leads to a scenario in which a musical artist is without legal recourse under the Copyright Act. Section I.B will discuss the history of the use of music in political campaigns and survey the legal battles arising out of several contested uses, noting the specific claims the plaintiffs stated in each. Part II of this Note will then discuss the two competing First Amendment issues that are at stake when a politician seeks to use a song or sound recording for political speech while the writer or performer of that song or sound recording wishes not to be associated with that speech.

Part III will address the existing avenues of relief (outside of copyright) that are available to a hypothetical plaintiff, namely, a right of publicity action and a claim under ยง 1125(a) of the Lanham Act. Section III.A will address the right of publicity, concluding that it is an unreliable cause of action that does not lend itself to the necessary balancing of competing First Amendment interests and that it is also unlikely to provide a remedy for our plaintiff. Section III.B will address the Lanham Act, and conclude that such a plaintiff is not likely to find relief under the Act

Additionally, trademark doctrine is not equipped to fully and consistently address the unique First Amendment interests underlying such a scenario. The various tests that have been developed by the courts to address First Amendment issues in Lanham Act cases are inadequate to address this scenario, which implicates competing First Amendment interests - as opposed to a more typical case, in which the First Amendment is simply used as an affirmative defense by a plaintiff. Section IV.A will propose that Congress enact legislation to create a remedy that fills the lacuna by protecting musical artists while also ensuring that the First Amendment rights of political candidates are not unduly burdened. Finally, section IV.B will address two implications of the proposed legislation.

This Note will conclude that political candidates should generally be required to obtain the consent of musical artists in order to use a song, but when such a use rises to the level of true political speech - in that it communicates a discrete political message pertaining to a matter of public concern - political speech interests outweigh the competing nonassociation interests of the musical artist and the use should be permitted with or without consent.

Keywords: music, songs, politics, political, campaigns, First Amendment, nonassociation

Suggested Citation

Schacter, Sarah, The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment (August 1, 2010). Georgetown Law Journal, Vo. 99, p. 571, 2011. Available at SSRN:

Sarah Schacter (Contact Author)

affiliation not provided to SSRN ( email )

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