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Former Talking Heads Frontman David Byrne has sued Florida Governor Charlie Crist, alleging Crist used the Talking Heads song, “Road to Nowhere” without permission in a Senate campaign ad. The suit accuses Mr. Crist of copyright infringement and false endorsement, and seeks $1 million in damages.
The song first appeared in an online video aimed at discrediting Crist’s major opponent for the vacant Senate seat, Marco Rubio. Way back then (and by “then,” I mean January), Crist was running as a Republican. He has since decided to run as an
I’ll-do-anything-you-want-just-keep-me-in-office Independent candidate. But according to Byrne, the suit “is not about politics … [I]t’s about copyright.” However, Byrne seems to immediately contradict himself, as he goes on to state that the suit is also “about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for.”
This statement is quite telling. To be sure, at some level, the case is certainly about
money copyright, as the song has previously been used in films (for which Byrne ostensibly received a royalty payment), and the $1 million damages claim is based on previous offers Byrne has received for use of his songs in commercials. But the end of Byrne’s statement reveals a motivation based in artistic integrity and public association, not in economic remuneration.
The problem? Well, America’s Copyright Act does not provide so-called “moral rights,” or droit moral, as they are called in that country whose work day ends at 3 p.m., to musical works or sound recordings. In fact, Congress explicitly rejected such rights when drafting the 1976 Copyright Act.
You see, across the pond copyright protection is viewed as more of an inalienable, natural right. Accordingly, those countries give authors (often regardless of whether the author has transferred the copyright) a set of rights known as “moral rights,” which often include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to protect the integrity of the work and the artist.
But Byrne didn’t file his suit in Europe. He filed it in Tampa. And since Tampa is part of America, and since American copyright law is based on
freedom utilitarian ideals, one might argue that his claim for $1 million is not totally based on the economics of the situation. Luckily for Byrne, his lawyer is smart.
Byrne hired attorney Lawrence Iser, who also represented Jackson Browne in his successful suit against 2008 Republican presidential candidate John McCain’s illegal use of his song “Running on Empty.” And Iser has read Gilliam v. American Broadcast Co., Inc., in which the Court of Appeals for the Second Circuit held that an artist may seek redress under Section 43(a) of the Lanham Act for the publication of his work in a “mutilated” form. Considering that the complaint alleges not only copyright infringement, but also false endorsement under the Lanham Act, Iser appears to be looking for a backdoor into a moral rights claim.
Whether American copyright law should recognize moral rights with respect to all copyrightable subject matter (there is limited protection to certain works under the VARA amendments) remains debatable and clearly beyond my word limit here. But if this suit proves anything, it’s that, even if Congress explicitly rejects a certain underlying notion of copyright law, what really matters is your attorney.
– Jesse Bland