Art as Misleading Endorsement on the U.S. Campaign Trail

September 6, 2008 by Dan Hartrell

At this week’s Republican National Convention, U.S. presidential candidate John McCain accepted his party’s nomination in front of a picture of the Walter Reed Army Medical Center. But there was one small problem. He instead used a picture of the Walter Reed Middle School. While the McCain campaign was silent on the error, they received some harsh words from Los Angeles Unified School District Board Member Tamar Galatzan:

“Though I am flattered that Senator McCain chose to use a school from my district as backdrop to his remarks at the Republican National Convention, I wished he had checked with me first. As a strong believer in public education, I don’t think the Senator is the most appropriate person to showcase one of the premier schools in the Los Angeles Unified School District. He is unwilling to bring fairness and equity to No Child Left Behind and ensure that schools like Reed get the resources they need from the Federal Government. From what I’ve heard, that’s not a priority for the McCain/Palin ticket.”

Regardless of whether the photograph is protected by copyright, this shows the relationship between intellectual property and issues such as personality rights and privacy. Using someone’s likeness to promote a message and imply an endorsement may be actionable as an appropriation of personality.

Music is somewhat different. While both music and images can be protected by copyright, music does not involve personality rights or privacy. However, it does raise similar concerns of misleading endorsements. The McCain campaign has also received take-down requests for using the copyrighted music of Van Halen, Jackson Browne, Heart, Orleans, and Frankie Valli without permission. This is not unique to the Republican party. When Barack Obama’s campaign repeatedly used the music of Sam & Dave, the musicians protested that this falsely implied that they endorse his candidacy.

This should remind us that intellectual property is not solely about protecting the profits of rightholders. In many cases, artists want the right to pick and choose which messages their art will be associated with. If the message is especially offensive to the artist, they may become openly hostile to the messenger.

Still, this is not to say that every artist is protective of how their work is presented. Brooks and Dunn commented on the peculiarity of both Barack Obama and George W. Bush using their song, but did not object. Arguably, re-interpreting someone’s art to express your own point of view is a legitimate exercise of free expression. While some artists are supportive of this freedom, others are more passionate about their moral right to control what they have created.

It is important to note that Canadian copyright law has given more weight to the moral rights of authors compared to American law. Since advocates of strong copyright protection often invoke the needs of artists, it is interesting to know how actual artists feel about their work being used without authorization.