John William Gregory 

affiliation not provided to SSRN

May 20, 2011

Abstract:      
When a politician uses a song at a political rally against a musician’s wishes, especially when the political views are not in-line with the musician’s, musicians turn to the law to prevent the continued undesired use. This paper demonstrates that trademark law, as currently constructed, provides protection without any special rules or legislative changes. In Qualitex, the Supreme Court stated the Lanham Act provides trademark protection for anything that is capable of carrying source-identifying meaning as to one particular source. With this in mind, there is no reason for courts to per se exclude a musician’s sound recordings or musical compositions from acting as a trademark, for the musician, as long as it meets all other requirements of trademark protection. If courts do not provide musicians with trademark protection, musicians may also turn to state right of publicity laws to provide protection. As this paper demonstrates, different courts frame rights of publicity issues differently and this guides their analysis. However, there may be a loophole in 17 U.S.C. 114(a) of the Copyright Act that provides musicians the protections they desire against unauthorized use of their “sound recordings.”