The Lawyers Weekly - July 15, 2011

JEFFREY
MILLER

Apparently Tom Petty is the latest pop-music star to complain about politicians ripping off their products. Petty says that, during her campaign to be the Republican nominee for U.S. president, Tea Party darling Michelle Bachman used his song “American Girl” without his consent. He approved Hillary Clinton’s use of the song during her 2008 attempt at the Democratic candidacy.

Sarah Palin got into a performance rights tiff with Heart during that period, when she played the sister duo’s “ Barracuda”— riffing, Palin said, off her personality profile and her nickname when she was on her high school’s basketball team. But because Heart’s agents had granted the Republicans a licence to use the song, the sisters could not plead breach of copyright.

Palin’s running mate, John McCain, offended Jackson Browne along the same lines, or at least along the lines of “ Running on Empty,” a weird theme anyway, you’d think, for an aged senator in his battle against the young and charismatic Barack Obama. McCain settled with Browne after the California courts rejected the senator’s defence of fair use. The McCain-

TRVLJUNKY / DREAMSTIME. COM
Palin campaign received com-
plaints of the same ilk from eight
or 10 other pop stars. More
strangely, Sam Moore, of the
1950s duo Sam and Dave, per-
formed at an Obama campaign
function after having objected to
the candidate’s use of the singers’
funky — and coolly appropri-
ate — hit, “Hold On, I’m Comin.’”
Canada has its own McCain
violation, but in respect of pizza
not politics (although the two
frequently go together, espe-
cially after a long day on the
bus). Parachute Club enjoyed
success with “Rise Up” during
the 1980s. A little over a decade
later, McCain Foods bought a
licence to feature the song in
commercials for their self-rising
pizza dough. Enraged that such
a mercantile use was made of
their political statement, and
claiming McCain’s commercial
damaged the band members’
artistic reputations, Parachute
Club brought an action alleging
EMI, their agent, had breached
its obligation to seek their
approval for licensing agree-
ments. They also claimed breach
of their moral rights under the
Copyright Act and that the per-
former in the commercial
sounded so much like Lorraine
Segato, the singer on the hit
recording, as to found wrongful
appropriation of personality.

Writer-lawyer-translator Jef-
frey Miller’s latest books are the
comic novel Murder on the
Rebound and The Structures of
Law and Literature.
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Email us at: tlw@lexisnexis.ca 
Re: “Human rights commis-
sions: remove them, don’t
reform them” The Lawyers
Weekly, June 10
A recent edition of The Law-
yers’ Weekly contained an article
entitled “Human rights commis-
sions: remove them, don’t
reform them.” Chris Schafer,
Executive Director of the Can-
adian Constitutional Founda-
tion, stated in his article that
“nothing short of abolishment
will suffice” to “cure what ails the
human rights system.”
Schafer argued that “the free
market offers the best way to
improve the lot of those dis-
criminated against.” He described
a process by which employers
who discriminate in their hiring
practices hinder their own com-
petitiveness by passing up some
of the best candidates, who are
then snapped up by the competi-
tion — the “competitive pres-
sures” of the free market eventu-
ally compel discriminatory
employers to “either drop their
bigoted hiring practices or go out
of business.”
There are numerous reasons
to question Schafer’s position.

LETTER TO THE EDITOR

First, the theory that the “free market” will lead to the disappearance of discrimination is contradicted by history. If Schafer’s view is correct that market forces alone will sanitize our society of discrimination, why hasn’t it already occurred?

Second, Schafer’s market
forces theory can only (even pot-
entially) work its magic if the
discriminator is unable to replace
the victims of discrimination—
employees, customers, business
partners, etc. But, the victims of
discrimination can almost always
be replaced because our society
rarely reaches the point at which
there is a shortage of human
resources.

Robert Smithson,
Labour & Employment lawyer,
Smithson Employment Law,
Kelowna, B.C.
Letters to the Editor should be
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Include name, address and daytime
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