Thursday, May 21, 2009

DeVore moves to dismiss Don Henley's false endorsement/association claims over campaign video 'parody'

California state Assemblyman Chuck DeVore (R) has moved to "strip away some clutter" from Don Henley's suit against him over the use of "The Boys of Summer" and "All She Wants to do is Dance" in "parody" videos intended to promote DeVore's campaign against Sen. Barbara Boxer (D), moving to dismiss Henley's Lanham Act Section 43(a) and California Business & Professions Code section 17200 claims.
DeVore Motion to Dismiss
The allegations relevant to this motion are that DeVore and his campaign's web guru Justin Hart, by making a video that used the tune to "All She Wants to do is Dance" but replaced the lyrics with attacks on Boxer, falsely implied that Henley -- a long-time liberal activist who has donated at least $9,000 to Boxer's campaigns -- had endorsed or was affiliated with DeVore and his campaign. DeVore argues that the false association claims fail because Henley has not alleged use of his "distinctive attributes" -- a factor that made viable "sound-alike" suits like those brought by Tom Waits and Bette Midler.

DeVore argues that this case is more like Nancy Sinatra's suit against Goodyear Tire for its use in an ad of "These Boots Are Made for Walkin'" -- a song with which she is associated but does not own the copyright. (Irrelevant personal aside: my grandfather is the founder and still CEO of Criterion Music Corp., which does own the copyright in "Boots" and, as the Ninth Circuit noted, licensed the composition for use by Goodyear.) In Sinatra, the Ninth Circuit held that to allow her to pursue a state-law unfair competition claim would "clash with federal [copyright law] law." DeVore also relies heavily on the Supreme Court's 2003 Dastar decision, which warned against permitting Lanham Act claims to expand into a form of "mutant copyright law" with no temporal limit.

Notably, DeVore did not move to dismiss Henley's copyright claims over the use of "The Boys of Summer," which he wrote and whose copyright he owns (Henley does not claim copyright ownership in "Dance"). Presumably DeVore will at some point assert fair use on the copyright claims, but did not believe that a motion to dismiss was the most effective vehicle for that argument.

My previous coverage of the DeVore/Henley dispute can be found here, here, and here.

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