Copyright Chronicle has been following this case, which involved two music videos made by DeVore’s campaign using the music and lyrics from Don Henley’s songs “The Boys of Summer” and “All She Wants to Do Is Dance.” DeVore changed “The Boys of Summer” to “The Hope of November,” with lyrics mocking Barack Obama and “All She Wants to Do Is Dance” to “All She Wants to Do is Tax,” with lyrics aimed at Senator Barbara Boxer.
In DeVore’s cross-motion for summary judgment, he claimed the fair use defense. According to DeVore, the use of Henley’s songs was intended to parody Henley and the liberal bias in Hollywood. (I’ve previously mentioned how the parody defense would be a tough sell for DeVore considering the subjects of the commentary in his two songs are not the subjects of Henley’s songs.)
In June, U.S. District Judge James Selna rejected DeVore’s parody claims, ruling that DeVore had not established a fair use defense, and granted Henley summary judgment on the copyright infringement claims. A full-text of the decision can be found here.
A large portion of the Court’s decision focused on the parody inquiry and the distinction between parody and satire. While parody of a work is considered fair use, the Court noted that many courts remain split over whether parody of the author of a work is also protected. In the decision, the Court framed its analysis of DeVore’s songs with the assumption that “parody-of-the-author” would constitute fair use. Under this framework, the Court found that “Dance” was purely satire, as the song “makes no implicit or explicit reference to Henley or Kortchmar, much less ridicules them” (p. 17). “November” was found to have parodic element, as the narrator in both songs express disillusionment with politics; however, it was only a minor part and therefore the extent of DeVore’s use was not justified.
The Court also found that DeVore’s use of the songs as campaign advertisements was commercial. In his opposition brief, Henley argued that the videos were intended to increase campaign donations (each of the videos contained links to DeVore’s campaign website and the emails publicizing the videos linked directly the donation page on DeVore’s website). See Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539; 105 S. Ct. 2218; 85 L. Ed.2d 588; 53 U.S.L.W. 4562.
The court agreed with Henley. Despite noting that courts have normally ruled campaign advertisements as non-commercial speech (See Mastercard Int’l Inc. v. Nader 2000 Primary Comm., No. 00 Civ. 6068 (GBD), 2004 WL 434404 at *12 (S.D.N.Y. Mar. 8, 2004)), the Court based their decision on the Ninth Circuit case Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 110, 117 (9th Cir. 2000):
“Like the church in Worldwide Church, which stood to gain parishioners through the unlicensed use of the plaintiff’s copyrighted work, DeVore and Hart stood to gain publicity and campaign donations from their use of Henley’s music. In fact, the videos contained links directing viewers to the DeVore campaign website, encouraging viewers to directly donate. Thus, under the logic of Worldwide Church, the Defendants “profited” from their use in the sense that they benefitted or gained an advantage without having to pay customary licensing fees to the Plaintiffs. 227 F.3d at 1118.” (p. 19)
Despite deciding for Henley on the issue of copyright infringement, the Court declined to rule on whether DeVore’s infringement was willful. The Court also rejected the Henley’s Lanham Act claims and granted summary judgment on the issue in favor of DeVore.