Judge Rules for Don Henley in Ad Flap

A federal judge has tentatively ruled that California senatorial candidate Chuck DeVore violated rocker Don Henley’s copyrights on two songs when he used them as the basis for campaign commercials posted on YouTube. In addition, the judge said that DeVore’s infringement was likely willful.

This decision, outlined in a 32-page tentative order, potentially holds major ramifications for politicians throughout the nation. (Judges are free to change their minds after issuing a tentative ruling, but it’s rare; the two sides were in court today arguing over the tentative ruling). Over the past few months, several musicians have pressed copyright claims against politicians including John McCain, Charlie Crist, and Joe Walsh.

The case against DeVore was the first to get to judgment.

In response to the lawsuit by Henley (pictured), DeVore claimed that the First Amendment protected political speech and he had a fair use right to Henley’s work. In court papers, DeVore claimed that in using two of Henley’s songs — and rewriting the lyrics — he was parodying Hollywood’s affection for liberals. Using a copyrighted song as part of a parody (poking fun at the original work) is allowed more often than using a copyright in a satire (when you’re poking fun at something else). 

U.S. District Court Judge James Selna framed the major legal conundrum this way:
“This case raises the somewhat novel issue of whether…criticism of the author of an original work falls on either the parody or satire side of the line. In other words, is work which appropriates from the original to criticize the original’s author — but does not directly criticize the content of original — validly classified as ‘parody’?”

In looking for an answer, Judge Selna cited a number of recent disputes, including a lawsuit brought by J.D. Salinger to stop a sequel to The Catcher in the Rye and another case where an individual was sued for writing a song, “I Need a Jew,” with a tune and lyrics similar to the Disney classic “When You Wish Upon a Star.” In those cases, judges split, one finding the “Rye” sequel wasn’t a parody and the other ruling that the song making fun of Walt Disney’s purported anti-Semitism was.

Judge Selna noted, “The act of ridiculing and lampooning public figures is a rich part of our First Amendment tradition” and “in many cases, the most effective tool of ridiculing a public figure…is through that person’s own creations.”

On the other hand, Selna takes great pains to analyze the character and lyrics of each of DeVore’s songs to determine whether he took too much liberty in what he borrowed from Henley’s underlying composition.

He found that the song “All She Wants to Do Is Tax” (based on Henley’s “All She Wants to Do Is Dance”) is pure satire because it fails to take aim at the original or its author, and thus it lacks justification to borrow. He found that “After the Hope of November Is Gone” (based on Henley’s “The Boys of Summer”) lampoons Henley as an Obama supporter and would thus be justified in appropriating some of Henley’s song. However, the judge finds the song goes far beyond what’s necessary to hold the singer up to ridicule.

Neither song is fair use, the judge rules.

A claim against DeVore for violations of the Lanham Act — whether he implied a false endorsement on the part of Henley — was dismissed.

Before the verdict, DeVore attorney Chris Arledge predicted a ruling favoring Henley would chill free speech by politicians throughout the nation, by reclassifying political speech as “commercial speech” open to legal inspection.

Publish date: June 2, 2010 https://dev.adweek.com/brand-marketing/judge-rules-don-henley-ad-flap-102500/ © 2020 Adweek, LLC. - All Rights Reserved and NOT FOR REPRINT