This has been a tough week for Republican candidates who use musicians works in their campaigns. On Tuesday, a U.S. District Court Judge found that Chuck DeVore, the Republican candidate seeking to unseat Barbara Boxer, infringed on Don Henley’s copyright for web parodies of two of his songs, “Boys of Summer” and “All She Wants to Do Is Dance.”
And now the group Rush has sent a cease-and-desist letter to Rand Paul asking him to stop using their songs at campaign events and in a fund-raising video. According to the Louisville Courier Journal, Paul also has used a line from one of Rush’s songs, “The Spirit of Radio,” in his speeches: “Glittering prizes and endless compromises/shatter the illusion of
“This is not a political issue — this is a copyright issue,” Robert Farmer, Rush’s attorney, told the Courier-Journal. “We would do this no matter who it is.”
But it does seem like Republicans get slapped down by musicians far more often than Democrats. Jackson Browne reached a settlement with the Republican National Committee for the use of his music at McCain campaign events, and, more recently, David Byrne sued Charlie Crist for the use of his song “Road to Nowhere.”
DeVore’s use of Henley’s music was more egregious in that the singer asked him to stop, but the candidate went ahead anyway. (My story on the case here). In a tentative ruling granting summary judgment to Henley, U.S. District Judge James Selna rejected DeVore’s contentions that the campaign videos were parodies of Henley and his political stances, which have a greater chance of falling under “fair use” protections. Although DeVore’s riff on “Boys of Summer,” called “The Hope of November,” can be seen as making reference to Henley, it really focuses on President Obama, Selna wrote. And his use of “All She Wants to Do Is Dance” as “All She Wants to Do Is Tax,” he wrote, has nothing to do with Henley at all but is really about Boxer.
Selna did reject Henley’s claim that DeVore’s use of his music falsely implied that he had endorsed his campaign — by most accounts they are at opposite ends of the political spectrum.
The judge also points out in his decision that should the allowance for the use of an artist’s music be so broad as to allow for its use in any parody of a point of view that the musician happens to hold, it could chill speech. In other words, artists would be less likely to speak out for fear that their works will be lifted. But the argument of a “chilling effect” also is used by DeVore’s attorney, Chris Arledge, in that it makes political speech “commercial speech.”
What’s left to be seen is what kind of damages DeVore faces, a stinging prospect should he lose the primary on Tuesday.
Ben Sheffner, who writes the great Copyrights & Campaigns blog and predicted the result, has more here.