I've said it before -- both in an academic journal and in these pages. A politician should not use someone else's copyrighted music, like say, the popular song "Barracuda," without the permission of the copyright owner. Niether the GOP nor the McCain-Palin '08 campaign own the song and it is doubtful that they have even offered the standard royalty for its use at the RNC and at campaign rallies. Even if they have, the actual owners of the song, Ann and Nancy Wilson, have specifically specifically withheld permission for the Republicans to use that song, going so far as to send a cease and desist letter. The Republicans should stop using it, as they have been, trying to play off of Vice-Presidential candidate Sarah Palin's high school basketball team nickname "Sarah the Barracuda."
It does not matter that the Wilson sisters would likely have given permission to the Obama campaign to use their song. It is their song, to use and control as they choose, in their sole discretion. The First Amendment does not preclude the existence of copyright law -- indeed, copyright laws are specifically authorized by Article I, Section 8. The point of copyright is that the owner of a song gets to control when and how it is used. That control is a property right. The owner can demand a fee for the performance of the song, whether that performance is live or by way of a sound recording. And the owner can withhold that permission completely.