California’s political landscape this election cycle has been, for lack of a better term, bizarre. We’ve had Web attack videos of Barbara Boxer as a blimp, Tom Campbell as a demon sheep and Meg Whitman as a sad looking, Rankin Bass-like puppet figure.
But two spots coming from right-of-right Senate candidate Chuck DeVore may prove to have the longest lingering bite. The person most irked by DeVore’s productions is neither of their intended targets, Barbara Boxer or President Obama, but singer Don Henley.
He sued DeVore in federal court for copyright infringement after the candidate took two of his songs, “The Boys of Summer” and “All She Wants to Do Is Dance,” altered some of the lyrics himself and had his campaign strategist re-record some of the vocals to make attack spots. “Boys of Summer” became “Hope of November,” and “Dance” became “All She Wants to Do Is Tax.”
Both sides are seeking a quick resolution of the case at the next hearing in U.S. District Court on June 1. That’s a week before DeVore squares off against two Republican rivals in the state primary. But the judge’s decision stands to have implications beyond that. Attorney Ben Sheffner, the author of the Copyrights & Campaigns blog and special counsel for John McCain’s presidential campaign, says that the “ruling in this case will likely help set the rules of the road for what campaigns and their supporters can and cannot do.”
It’s no surprise that the flap has surfaced, given the growth of Web videos as a cheap and easy tool for candidates to get attention, even if that has meant risking the wrath of Hollywood copyright holders. Democrats may push boundaries just as much as Republicans, but GOP candidates are most often called on it. This is in no small part because the music industry’s political stripes tend to skew left and famous figures fear even the implication that they’re endorsing the right.
In 2008, the Ohio Republican Party used portions of Jackson Browne’s “Running on Empty” in a Web video in support of McCain, and the singer sued not just the state party but McCain and the Republican National Committee. The result was a confidential 2009 settlement, rumored to be for a hefty six-figure sum, and a pledge to do better in the future.
Like Browne, Henley argues that DeVore’s use of his music makes it seem as if he’s endorsing him — which is about as likely as Sarah Palin supporting a gun ban. Henley is a prolific Democratic donor who has given to Boxer. He’s hired a team of experts including a musicologist and a survey specialist. Henley is joined in his suit by fellow plaintiffs Mike Campbell, with whom he wrote “Boys of Summer,” and Danny Kortchmar, who wrote “Dance.”
A very big part of the case hinges on whether DeVore’s videos were parodies or satires — and there is a distinction.
Henley’s legal team says that DeVore’s videos were not parodies, and therefore not covered by copyright provisions that allow for the “fair use” of material. They cite the Supreme Court’s 1994 decision in the case of Campbell vs. Acuff-Rose Music Inc., in which a rap group borrowed lyrics from Roy Orbison’s “Pretty Woman” to create a hip-hop parody. Roughly speaking, the high court said that a parody can claim use of copyrighted material if it “at least in part, comments on that author’s works.” But the claim to fair use diminishes when it is a satire and has “no critical bearing on the substance or style of the original composition.”
The videos have been removed. But Henley claims that when they were up, they helped DeVore raise money online, and throughout the candidate has not been shy about calling attention to the flap.
DeVore, who is joined as a defendant by his strategist Justin Hart, argues in a recent brief that their videos “at least in part” comment on Henley and his work, and therefore meet the standard for a parody. His legal team says that it was no accident that DeVore chose Henley’s music, as he was seeking a “prominent” entertainment figure to underscore his point of taking on “the Hollywood and entertainment elite” who helped Obama and Boxer get elected.
In its most recent brief, DeVore’s team says that he easily “could have chosen songs from an artist — a Lady Gaga, a Beyonce — who is more contemporary and who would have generated far more media coverage. But there would have been no political point.”
It’s unclear how Judge James V. Selna will decide at the next hearing, if he does at all. Henley claims that DeVore got away with not having to pay at least $1.2 million in endorsement and licensing fees. Sheffner thinks that Henley is more likely to prevail. But even if DeVore loses and faces a hefty judgment, it may not matter much if he wins the primary. With the sums expected to go into the general election, that’s a pittance.