Saturday, April 24, 2010

Henley, DeVore file dueling briefs in copyright battle; are campaign videos fair use 'parodies' or infringing 'satires'?

Both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign "parody" videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material.

The motions focus largely on one issue: whether the videos, which use the compositions "The Boys of Summer" and "All She Wants to do is Dance," are indeed "parodies," and thus likely fair uses, or, rather, unprivileged "satires." That's a dichotomy endorsed by the Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), which distinguished the two concepts as follows:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.
(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. (It's a distinction the journalists covering the "Downfall" controversy should recognize before they automatically label those videos "parodies." The vast majority aren't. Much of the coverage has been really terrible, simply labeling them all parodies without any nod to the actual legal definition.)

For Henley, this is a simple case: DeVore's videos do not comment on Henley's songs. Rather, they use Henley's songs to mock Boxer:
Defendants' assertion that their Internet videos, which feature full-length renditions of Plaintiffs' songs targeting President Barack Obama and Senator Barbara Boxer for the purpose of promoting DeVore's senatorial ambitions, are fair use "parodies" of Plaintiffs songs is an excuse manufactured after the fact. Defendants did not select Plaintiffs' popular musical compositions because they sought to mock, criticize, or comment on them. Rather, defendants took Plaintiffs' songs as instantly recognizable vehicles to broadcast their messages, which have no relation to Plaintiffs or their artistic works.
And Henley's brief cites evidence that DeVore and his campaign used Henley's songs, and fomented this lawsuit, largely to gain free media attention and raise money as he faced two better-funded GOP primary opponents in Carly Fiorina and Tom Campbell. Notably, Henley hired a total of four experts to bolster his claims: an English professor, a musicologist, a licensing consultant, and a survey expert. No one can accuse him of waging this lawsuit on the cheap.

DeVore's brief has a more difficult task: convincing the court that the videos can fairly be characterized as parodies:
Plaintiffs contend that Defendants' works are not parodic because they attack Barack Obama, Barbara Boxer, Al Gore, and others. They do, of course. But under Campbell, parodies are not limited only to those works that target only the original work or author. Instead, the question is whether the work at issue "is one that, at least in part, comments on that [original] author's works. Id. at 580."
DeVore goes on to argue that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and indeed asserts that the campaign chose to use Henley's songs for precisely that reason. DeVore also argues that the campaign's uses are fair even if they are more appropriately characterized as satires, citing Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), in which the Second Circuit found fair use in artist Jeff Koons' use of a photograph in a larger work.

DeVore's brief is indeed effective in dispelling the common oversimplification that "If it's parody, it's fair use; if it's satire, it's not." As the Supreme Court itself stated in footnote 14 of Campbell, it's not quite that simple:
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work tocome within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.
That said, under current Ninth Circuit law, I still think Henley is more likely to prevail here. DeVore's videos target Henley only in the loosest sense, and his brief's arguments that they are a comment on the specific lyrics of "The Boys of Summer" and "All She Wants to do is Dance" sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).

As I've said before, litigation -- and more, commonly, DMCA takedown notices to YouTube and ISPs -- involving campaign uses of others' copyrighted material is going to become increasingly common, given the cheap and easy ability of both campaigns themselves and interested third parties to create web videos that incorporate music, movies, and TV footage (including news broadcasts). The ruling in this case will likely help set the rules of the road for what campaigns and their supporters can and cannot do.

Opposition briefs are due by May 3, 2010, and replies fourteen days later. A hearing is set before Judge James Selna in Santa Ana June 1. Everyone involved in campaign media should be watching.


  1. I am not sure that Ninth Circuit precedence is worth a whole lot at the district court level. Penguin Books was an outcome-determinative decision where the Circuit found that since you can presume irreperable harm in copyright cases for purposes of awarding a preliminary injunction (later rejected by the Supreme Court, by most accounts, in Ebay v. MercExchange and Winter v. Natural Resources Defense Council), you can also presume irreperable harm in a fair use analysis at the preliminary injunction stage.

    That ain't right, as any 1L can attest. At the preliminary injunction stage, you're supposed to evaluate the probability of a plaintiff's success on its own, not with a presumption in favor of a plaintiff that would not be available later in the case.

    I think we'll continue to see parody fair use decisions based on what courts perceive as the underlying equities of a case, and which are not particularly controlled by precedent. See, e.g., Bourne Co. v. Twentieth Century Fox (Judge Batts finding that a work that did not comment on the original was a noninfringing fair use) and Salinger v. Colting (Judge Batts finding that a work must comment on the original work to be a noninfringing fair use).

  2. You are right that many of the commentators on the Downfall videos ignore the distinction between satire and parody, and label them all as parody. But this is evidence of how far the law has gotten from what the public wants. Only a copyright lawyer would think that the Downfall videos require permission of or payment to the movie studio. Everyone else finds that they do exactly what people want from copyright - namely encourage the creative explosion and ready distribution of new ideas and approaches.

    When a law is as divorced from public understanding as copyright law is, it cannot last for long.

  3. I think that the Deadfall videos fall into a grey area that are neither parody nor satire, and also are hindered by the fact that the film displays a historical character. I can imagine a situation where one could use characters from a well-known story or film (The Wizard of Oz or Star Wars, for example) to comment or focus attention on current affairs (for example, they might depict Bush as Emperor Palpitine or various members of the Obama cabinet as the Scarecrow, Lion, etc.). Here the commentary would be directed at the public figure, but the copyrighted work would be a necessary vehicle to make that commentary. Hence the need for a third category. (In a preempted, and thus never published, Law Review note I wrote, I had suggested the term "lampoon".) And the Deadfall videos are another good example of this, and while it is pretty clear that none of them are critiquing the film itself, the whole point of all of the videos is that it is Hitler who is doing the ranting, and clearly the inclusion of Hitler is necessary for the videos to make their point. Deadfall is merely a convenient source of Hitler video, which is clearly unavailable elsewhere.

  4. You opened and closed this post with the claim that this case will help set the rules for 3rd party use of materials in a political context. What is the possibility of ignoring the parody/satire distinction in Campbell and carving out a narrow exception for such political purposes? This would seem inline with fair use keeping copyright law out of 1st amendment trouble.

  5. @Anon 12:30:

    I don't think the court will "ignore" Campbell's parody/satire distinction. But I do think it will accord some weight to the fact that this dispute is occurring in the context of a political campaign, where First Amendment interests are at their apogee. See, e.g., Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978 (finding fair use where candidate used 15 seconds of opponent's campaign song in a political ad). That said, the fact that you're a political candidate doesn't give you an exemption from copyright law, and if I had to guess, I'd still say that Henley is the likely winner here.

  6. This isn't a First Amendment issue at all, so the political aspect is irrelevant. Courts have consistently stated that freedom of speech is not a defense to a copyright infringement. As the videos here are not a parody on the Henley WORKS themselves, there is no parody defense here.

  7. Robert hits the nail on the head regarding the "Downfall" videos. Are they directly "parodying" the movie itself? Depending on the instance, maybe, maybe not.

    The oblique-angle take is that Downfall portrays Hitler, and the parodies PARODY HITLER; while they also take a jab at something else (The MafiAA's DMCA abuses, the iPad silliness, someone's stored comic books and lead figurines having been thrown out by his mother, HD-DVD being defeated by Sony Blu-Ray, etc), the idea parodied is that Hitler would have flown off the handle and either commanded something, or cried about it.

    Is "Downfall", the precise movie, being parodied? Tough call. Is there any other readily available footage re-creating that event on hand? Probably not - I know of no other movie with that scene in it. And that would seem to make it Fair Use Parody.

  8. Don Henley's leftist politics may yet prove a factor in this dispute. One reason a parody gets a thumbs up from the courts while a satire is more suspect is the legal assumption that no writer will make fun of his own work. If the work is to be ridiculed, it must be by someone not authorized by him. Also, if an author isn't likely to do a parody, he's unlikely to do one for his own profit.

    Given Henley's political bent, he would have never created these political ads, therefore DeVore's use of them is doing something that: 1. Henley would never do for political reasons and 2. Henley would never profit from doing. That creates a fair use space for DeVore.

    And I agree that when political and social issues are involved, public benefit suggests that we need a much broader spectrum for fair use. Advocacy needs as much elbow room as we can give it.

    --Michael W. Perry, Untangling Tolkien

  9. You are wrong about the parody-satire divide in Acuff-Rose. While parodies are more likely to be fair uses because they must necessarily use the parodied work, satires can be fair uses as well, as long as there is some justification for using that specific work in the satire. It is noticeably more difficult to make the fair use argument for a satire, but it is incorrect to simply say that satires are "unprivileged." See also Blanch v. Koons, in which part of Koons' explanation of his work was that it was a satire of advertising at the time.

  10. @grimp:

    Did you even read my post? I acknowledged the very points you raise, by quoting the entirety of footnote 14 of Campbell and noting DeVore's citation of Blanch v. Koons. And I did not say that all satires are unprivileged; I merely described Henley's argument that DeVore's videos fall into the category of "unprivileged satires." I never denied that there are also "privileged satires."

  11. Thumbs up both to Ben's analysis that many of the Downfall videos wouldn't be considered protected parodies based on how most courts interpret the current law AND to Anonymous at 4/25 6:15pm in the analysis that this only goes to prove how bat-shit crazy and against popular sentiment the current state of the law is.

    The criteria for fair use/parody defenses have remained too flexible such that court precedent has less value and allows people to constantly conflate objective legal analysis with their subjective IP policy preferences.

  12. Levine said . . .

    The criteria for fair use/parody defenses have remained too flexible such that court precedent has less value and allows people to constantly conflate objective legal analysis with their subjective IP policy preferences.

    My response:

    That's fair use. Until someone finds a better way of creating a safety valve to make copyright law "work," I like a common law approach.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.