Tuesday, June 1, 2010

Tentative ruling favors Henley over DeVore on copyright claims, rejecting 'parody' argument

According to a report on KTTV's web site, federal judge James Selna has tentatively ruled for Don Henley over Senate candidate Chuck DeVore (R) on his copyright claims, rejecting DeVore's arguments that his campaign videos that took Henley's "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 were fair use "parodies." Update: Here's the tentative ruling. According to the Fox station's report:
Selna [tentatively] ruled that DeVore's case for fair use is stronger for "The Hope of November" because he uses Henley's song to parody what he contends is Henley's support for liberal causes, but it fails because it primarily focuses on criticizing Obama.

The judge said DeVore's case is much weaker for "All She Wants to Do Is Tax," because the lyrics have nothing to do with Henley. Selna said it more closely resembles satire, as opposed to parody, and the standard for using such material without paying for it is higher for satire than it is for parody.
DeVore attorney Chris Arledge argued that the judge's ruling, if it stands, would send a chilling effect on free speech by politicians because it would make all political speech "commercial speech."
While the tentative went for Henley on his copyright claim, KTTV's report says Selna sided with DeVore on Henley's Lanham Act claim, which was premised on the allegation that the use of his songs falsely implied that the liberal singer had endorsed the conservative Republican's campaign. (Didn't someone predict exactly this result?)

Again, keep in mind that Judge Selna's ruling is tentative, and he is free to change his mind before issuing a final ruling.
Tentative Summary Judgment Ruling in Henley v. DeVore


  1. Re: make all political speech "commercial speech."

    What makes speech "commercial speech"? And why is it special?


  2. I'm confused. I thought "All She Wants to Do Is Dance" is copyrighted to Kortchmar and not Henley, yet it seems this tentative ruling treats both songs as copyrighted to Henley. Does Henley hold copyright for "All She Wants to Do Is Dance" even though DeVore does not use Henley's sound recording but rather his own voice over Kortchmar's melody?

  3. You are correct: according to the complaint, Kortchmar (not Henley) owns the copyright to the "All She Wants to Do Is Dance" composition." And only Kortchmar asserts copyright claims based on "Dance." Here's the operative First Amended Complaint: http://www.scribd.com/upload/upload_new?from=topbar_docview#files

    When the court enters judgment, I assume it will make clear which of the plaintiffs and defendants are relevant to each of the 8 separate claims. In this tentative ruling, the court did not focus on who owned which of the copyrights presumably because it wasn't important to the fair use analysis.

  4. Thanks for the prompt reply! I actually didn't realize Kortchmar had become a co-plaintiff.


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