Musicians, Politicians, and the Forgotten Tort

Election seasons regularly reveal uses of songs and recordings at campaign events and in campaign ads. Frequently, well-known performers who have recorded the songs object to the uses of the songs and recordings (and their recognizable voices). Often, the performers do not own the copyright to the songs or the recordings, so they have no copyright infringement claim to bring. Performers who seek legal relief against those responsible for the political uses have relied, thus far, on right of publicity claims or false endorsement claims under section 43(a) of the Lanham Act.

However, judicial concerns about the proper reach and application of those theories, and uncertainties about how to account for First Amendment interests, make the right of publicity and false endorsement less-than-reliable theories for performers to invoke against political users. This Article proposes the use of a different theory in this setting: the forgotten tort of false light publicity. It is well established that this theory—one that performers have yet to invoke and commentators have not addressed—may be employed in response to defendants’ noncommercial speech, assuming the relevant First Amendment requirements are met. The First Amendment aspects of false light publicity were set long ago by the Supreme Court.

For courts, the false light publicity theory has the virtues of setting the governing rules relatively clearly and avoiding the uncertainties presented by the theories that performers have employed thus far against political users. Some performers’ claims should succeed under false light publicity principles, and others should not. At least, however, the false light publicity theory offers reasonable ways to balance the competing expressive interests of performers and political candidates.