Heart’s Barricuda: A lesson in licensing, ownership, politics, and moral rights

[youtube=http://www.youtube.com/watch?v=hpkitLUbeEg]

Do artists have control over the use of their songs? Should they? Most people would agree that an artist’s work being used to support a completely opposite position seems somehow wrong (such as John Lennon’s Imagine being used to sell cars). Heart’s song, Barracuda, was recently used by the McCain campaign at the Republican Convention and at rallies. I believe the statement of the McCain campaign that it paid all fees required. But Nancy and Ann Wilson of Heart strongly objected to the use of the song.

The Wilson sisters state:

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.

So assuming that the appropriate fees were paid, what is the problem? Heart doesn’t want their song played by certain people to promote their cause — yet ASCAP/BMI blanket licensing most likely don’t give them the ability to opt out or limiting of specific users of their music. Others have made legal arguments to prevent the use of Barracuda based on Lanham Act trademark claims and right of publicity of the members of Heart, but I think the larger issue is one of moral rights.

So what are moral rights? The Berne Convention lists the right even if the author does not own the copyright to:

• the right of integrity: the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation

• the right of attribution: the right to claim authorship of the work

Notice how similar these are to the license terms in most of the Creative Commons licenses.

After all, what is Heart worried about? That their song is being used to promote a position they don’t agree with — and by having their song used, it seems like they are Republican supporters. Based on the above quote, they would likely view this use as “derogatory” to their reputation. If the U.S. had a strong moral rights tradition, basing a claim on moral rights would allow musicians and others to prevent this type of use of their work.

Academics argue about whether moral rights exist in the U.S. and the general answer is that they should be recognized because the United States has signed the Berne Convention, but in practice, moral rights don’t exist (with the exception of visual artists, who have their own special law). The moral rights tradition is strong in most civil law countries, such as France, as well as Canada.

*Yes, I understand the irony of embedding the song here in a post commenting on the appropriate use of the song!