Guantanamo's Greatest Hits: The Semiotics of Sound and the Protection of Performer Rights Under the Lanham Act
16 Vanderbilt Journal of Entertainment & Technology Law 41 (2013)
35 Pages Posted: 21 Jan 2014
Date Written: November 25, 2013
As Bruce Springsteen and Ronald Reagan, Jackson Browne and John McCain, and Tom Morello and Paul Ryan can attest, the exploitation of creative works for political or commercial purposes that run contrary to artists’ ideals can stir passions and trigger lawsuits. Yet for performers who are not authors of the exploited works, there is little meaningful legal relief provided by the federal Copyright Act. Instead, such performers — from featured singers and dancers to actors and other personalities known for their distinctive traits — have leaned on alternative theories for recovery, thereby raising the specter of liability outside of copyright law for such unwelcome uses. While a rich body of literature analyzes and critiques the use of publicity rights in these contexts, the vindication of performer rights through the Lanham Act and related state law has received far less attention.
Using musical efforts to addle Guantanamo Bay detainees as a launching point, this Article seeks to address this void by analyzing and critiquing performers’ efforts to seek relief under the Lanham Act and related state law for such unwanted uses of their creative output. Though courts in such cases have frequently ruled in tandem on right of publicity and trademark/false endorsement claims, jurists and scholars have given insufficient independent analysis to the particularities of the latter. The result is a series of decisions on performance characteristics — from the vocal (a gruff, raspy voice à la Tom Waits) to the physical (a blonde donning jewelry and a gown flipping large block letters à la Vanna White or a stout middle-aged man drinking beer while seated at the end of a bar à la Cheers) — that take seemingly paradoxical and troubling positions. Inconsistencies as to what constitutes a protectable mark and whether a likelihood of confusion occurs from the use of said mark have plagued the case law and have threatened to undermine the functioning of the marketplace for licensing creative works and burden the copyright regime as a whole. The Article concludes by considering potential alternatives for redressing performer concerns in a manner that better protects the public domain and balance in the intellectual property regime.
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