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.