“Moral rights”: A discussion of Peter, Paul & Mary’s cease-and-desist letter to NOM

Remember when Peter, Paul & Mary sent NOM a cease-and-desist letter a few weeks ago, after P8TT participant Kathleen Perrin notified them that NOM was playing “This Land Is Your Land” at their rallies? And when 23,154 Courage Campaign community members thanked Peter, Paul & Mary?

Well, the case has been the subject of discussion in other forums as well, including the blog of Brendan Riley, an Associate Professor in the English Department at Columbia College Chicago. Although Prof. Riley’s post is somewhat critical of our approach, we thought we should bring it to the attention of the P8TT community, in the interest of a free and open discussion that is edifying to all involved. I’m looking forward to reading your thoughts in the comments, as I’m sure Prof. Riley is as well. — Eden James

By Brendan Riley

There’s this concept in copyright and intellectual property law that I find pretty interesting: moral rights. While this set of rules relates to attribution (citation, etc), it’s also used to discuss the artist’s right to defend the “integrity” of the work. This could include the use of the work in a context outside its intended meaning. America doesn’t really recognize this right. We defend ownership and copying rights, but moral rights don’t have codified space in our legal system.

Except in campaign music. I presume large scale political events license the music they use, but usually those licenses are not cleared with the artists, so you get the famous moments when musicians protest the use of the music in the wrong context. (Think Bruce Springsteen and the Reagan campaign’s use of “Born in the U.S.A.”) It’s usually liberal artists protesting conservative uses of music. I wonder if it’s ever gone the other way?

So I was interested to learn from the Courage Campaign that the National Organization for Marriage (which seeks to prohibit marriage, oddly) had been sent a Cease-and-Desist letter because they were playing the Peter, Paul, and Mary recording of “This Land is Your Land.”

Peter, Paul, and Mary love the marryin' gays

In the Courage Campaign email, they write:

Kathleen Perrin, a frequent commenter on the Prop 8 Trial Tracker, was stunned and deeply offended that NOM was using this beautiful folk song to drown out the chants of equality counter-protesters. Kathleen knew that Woody Guthrie and Peter, Paul & Mary unequivocally supported justice and equality for all.

This is a really interesting moment because of the usual copyright conditions attached to “This Land is Your Land.” Woody Guthrie famously released it under the first creative commons license:

“This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

So we have here someone advocating freedom and sharing, and another group from another era picking up that spirit and using the song again, and another group re-purposing that song in ways the original creators disagree with. Some thoughts:

• From a legal perspective, it seems like PPM could stop NOM from using the song by refusing to license it for public performance. Since those rates are negotiable (unlike radio-play rates, for instance), there might be some traction there. I wonder if the NOM could get around it by hiring a radio station to play the song on a loop for a while (as a patriot day or something). Then they could just play the radio broadcast over their speakers.
• But nothing would prevent them from using a different group’s cover of the song, or recording their own to play.
• Probably the most effective part is the public announcement of this disagreement. On one hand, the people choosing the song wanted some traction from the PPM recording because it’s nostalgic. By publicly disagreeing with the use of the song, PPM calls attention to it and disrupts that pleasant nostalgia.
• On the other hand, it seems like there’s a whole other angle here about the commodity-fetishism effect, in which PPM’s “This Land is Your Land” does more much to evoke positive memories of the 1960s than to evoke the political ideas that drove those movements. Even a rudimentary reading of the “Free Love” era would suggest that it’s clearly antithetical to Prop 8. Of course, many of the Baby Boomers are now conservatives, but they probably don’t think of themselves as no longer connected to their music. But it goes to the power of music to operate on valences other than the rational — we like the song, we enjoyed the era, therefore it’s nice. It doesn’t matter that the music actually says something opposed to what I want.
• Like protecting marching Nazis, I tend to side with the NOM in terms of rights. I don’t agree with the idea of moral rights beyond the copyright period. If we really want to be able to have a vibrant, creative culture, we need to allow for the possibility that art will be used in ways the original artist wasn’t intending. I also think it’s amusing that the Courage Campaign email slipped Woody Guthrie in there, as if he’s also one of the signatories. I’m sure Arlo could have gotten on board. More importantly, having published it under the cc-like license above, would Woody step up and complain? Would he try to take legal action to stop it?
• At the same time, I also appreciate that modern media gives moral rights a new kind of power, as artists like PP&M can make their disgust with groups like NOM clear and public.

I’ll file this away to discuss with my New Media students — we spend a lot of time talking about copyright and its importance or use in culture. The instinct is that artists should be able to control their work is a strong one when students think about their own work, but they also want to rip/mix/burn. Cognitive dissonance, ahoy!

Edit: As I read this, I realize it might be unclear which side of the debate I fall on, perhaps. I firmly believe that gay marriage is a fair and just idea, one we should all work for.