DeVore, Henley file oppositions to summary judgment motions; Henley shocker: I'm no 'liberal'

Don Henley and Chuck DeVore have each filed their oppositions to the other side's summary judgment motions in their battle over DeVore's campaign videos that took "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's DeVore's brief, and Henley's. And here's DeVore's motion, and Henley's.

The briefs again focus on DeVore's fair use defense, and specifically whether the videos are protected "parodies" or infringing "satires." For reasons I've previously stated, I believe these videos fall on the "satire" side of the divide, and that the court is unlikely to find DeVore's uses fair. And nothing in this new round of briefing alters my prediction on that point. A few highlights from the briefs:

• DeVore does a good job of minimizing (if not eliminating) the importance of Henley's "parody" expert, Mark Rose, an English professor at UCSB. I agree with DeVore that Rose's opinion that the videos are not parodies really isn't relevant here. Campbell v. Acuff-Rose Music and its progeny define "parody" for legal purposes, and the law is clear that the determination of parody vel non is a legal question for the judge. See, e.g., Mattel v. Walking Mountain Productions, 353 F.3d 792 (2003) ("every court to address the issue whether a defendant's work qualifies as a parody has treated this question as one of law to be decided by the court"). I just don't think an expert was necessary on this point.

• DeVore argues that the fourth factor (market harm) favors him. Because Henley has chosen not to license his songs for any purpose, so the argument goes, there is no market to be harmed. I'm actually not sure which way Henley's decision not to license his songs at all cuts. The "no actual market, so no harm" argument has appeal. But it was pretty soundly rejected by the Second Circuit in Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) ("the need to assess the effect on the market for Salinger's letters is not lessened by the fact that their author has disavowed any intention to publish them during his life-time.... He is entitled to protect his opportunity to sell his letters, an opportunity estimated by his literary agent to have a current value in excess of $500,000."). (I acknowledge that, unlike this case, Salinger involved unpublished works, which weighs strongly against fair use.)

• On Henley's Lanham Act claim, I thought DeVore's brief was very persuasive both legally, and factually, in picking apart Henley's expert's survey purporting to show a large number of people confused into thinking that Henley supports DeVore's Senate campaign.

• One of DeVore's arguments has been that he chose to "parody" Henley's songs because of the performer's well-known association with liberal and Democratic causes, and that this choice weighs in favor of fair use. I thought Henley's brief persuasively rebutted this point. Notably, just last week the Second Circuit in Salinger v. Colting upheld the district court's conclusion that "Campbell and its progeny define the limits of parody to include only those elements which criticize or comment upon the source author's works, rather than the author himself." I just don't find it plausible that DeVore's videos comment on the works themselves (as opposed to commenting on Boxer and Obama). (Henley also says that he does not consider himself a "liberal" and in fact has publicly voiced support for Sen. John McCain (R). Br. at 9. Who knew?)

Just a last point on the Lanham Act arguments, which I've given somewhat short shrift. I predict DeVore will prevail on this claim, and I think he should. And I think copyright owners should in fact be rooting for DeVore here. For if Henley prevails, it will in fact harm copyright owners' ability to license their works. Here's a hypo: say a music publisher owns rights to a song, and licenses it (via ASCAP or BMI) for public performances in tens of thousands of venues. The owner of a bar or restaurant or dance hall should be confident that he now has the right to play the song, free of claims. He should not have to worry that one of the performers (who likely doesn't even own the copyright) can come along and say, "Hey -- I'm strongly identified with my song. And I strongly dislike your restaurant, and don't want to be 'associated' with it. You're violating my rights under the Lanham Act, and my right of publicity as well. Pay up." That's not materially different from what Henley is claiming here, and, if he's successful with his argument, it could really gum up the works in licensing. And that's about the last thing the already overly complicated world of music licensing needs right now. Dastar warned against "a species of mutant copyright law that limits the public's federal right to copy and to use expired copyrights" (internal quotation marks omitted); I think that admonition applies with equal force to uses of copyrights that are either licensed or fair.

Reply briefs are due May 17, and a hearing is set before Judge James Selna in Santa Ana June 1.