Thursday, August 5, 2010

Henley, DeVore settle lawsuit; Henley rails against remixes and mash-ups, YouTube, 'dark side' of Internet; songs are not 'toys or playthings'

Eagles frontman Don Henley and his fellow songwriters Mike Campbell and Danny Kortchmar have settled their copyright suit against former GOP Senate candidate Chuck DeVore for an apology and payment of an undisclosed sum.

“This is a moral victory, and a victory for every copyright holder in the United States,” said Henley in an exclusive interview with Copyrights and Campaigns yesterday. “We set a precedent that will likely discourage this kind of behavior,” he added, referring to unauthorized uses of copyrighted songs by political campaigns. "I think this is going to have a very positive effect on the creators of music."

DeVore and co-defendant Justin Hart, the campaign’s Internet director, said in a statement, “We apologize for using the musical works of Don Henley, Mike Campbell and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.”

The lawsuit, which Henley had largely won at the district court, involved two videos made by the DeVore campaign which took the lyrics from Henley’s songs “The Boys of Summer” and “All She wants to do is Dance” and substituted in new lyrics attacking president Obama and Sen. Barbara Boxer (D-CA). DeVore argued that the videos were fair use parodies of Henley’s songs, but the court held that the videos were satirical rather than parodic and rejected the fair use defense. Questions of willfulness and damages were still to be resolved. The court did rule for the defendants on the plaintiffs' Lanham Act claim, which alleged that DeVore's videos falsely associated Henley with the Republican's campaign. DeVore lost the June primary to former HP exec Carly Fiorina (R) for the chance to take on Boxer in November.

In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.” Henley -- who has donated $9,000 to Boxer’s campaigns over the years but shuns the “liberal” label (“my political life is not that simple”) -- insisted that he did not target DeVore because of the state Assemblyman’s conservative views, and indeed objects to all political uses of his songs, regardless of the candidate or cause. Henley noted that he similarly complained after 2008 North Carolina Democratic gubernatorial candidate Richard Moore’s campaign used the song “Life in the Fast Lane” in a YouTube video without permission. The Moore matter was settled after the campaign voluntarily took down the video and admitted error, Henley said.

Asked what advice he has for other musicians and songwriters whose songs are used by campaigns without permission, he said, “When you think you’re right—when you know you’re right—when someone has stolen and misused your intellectual property, you have to do something about it.... I could have let this go, but I had to stand up and do something about it.”

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.” He added, “People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.” Henley noted that he does not license his songs for commercials and only rarely does so for uses in films and television.

And Henley reserved particularly ire for YouTube, which he described as a “fence” for stolen intellectual property. “YouTube is one of the biggest violators or copyright laws in the world,” he said. “A tremendous amount of the content on YouTube is a copyright violation.... I’m not a fan of YouTube at all for their part in aiding and abetting copyright violations.” YouTube, which hosted the videos at issue in the DeVore case, took them down in response to DMCA notices, but DeVore filed counter-notices, and YouTube would have re-posted them but for the filing of the lawsuit. (YouTube, of course, recently won a major copyright decision in a case brought by Viacom and other copyright owners, including a putative class of music publishers, when a federal court ruled that the site was protected by the DMCA’s safe harbor for hosts of user-generated content.)

And Henley lamented what he views as the lack of response in Washington to rampant infringement on the Internet: “The politicians are not supporting creators on these issues, and it’s extremely disappointing.” He blamed what he views as the lack of action on the political power of Internet companies. “The people who create and run these sites like YouTube have a lot of clout,” he said.

“The Internet is slowly but surely killing the whole concept of copyright,” complained Henley. “I don’t like where it’s going.... The Internet is a wonderful thing but it also has a very dark side.”

I have an inquiry in to DeVore and will publish his thoughts should he wish to share them.


  1. Cripes, what a baby Henley is. He doesn't like mash-ups or Youtube. Waaah. Get over yourself, Don.

    Mash-ups are a completely legal endeavor for the most part, and Youtube, while it has had problems in its infancy, it does take things down when notice is filed.

  2. Mr. Henley is protecting what is rightfully his. Who out there would not fight for their property? Doesn't matter what it is, your house, car, children, music; what is yours is yours and unless you give your permission for someone else to use it they cannot just take it! I am glad he won! More power to you Henley!

  3. Hey, Anonymous -- You will agree, I feel sure, that Henley and all copyright owners ought pay state and local property taxes on the value of their property, right?

  4. Congrats Mr.Henley! Keep the music coming, your the best!

  5. Anon 8/5 3:41pm -

    That is a nonsensical argument. Do you pay state and local property taxes on your car? What about your television? No? Why should it be different for intangible property?

    There's a sound policy reason why those taxes attach to land only.

  6. Hey Anonymous 2 above:
    We DO pay taxes on what our copywrites earn and when our heirs inherit our intellectual property, taxes ARE paid on that.

  7. I also agree with Henley. Especial the political stuff. Hi was used unauthorized. I use to love Bon Jovie but he supported Corzine - well at least did one of those 1000 dollar plate shows for him. I now turn off or change any channel with Bon Jovi for his support of that corrupt ex governor of NJ!

  8. When an individual puts forth the WORK it takes to write a song, then they unequivocally have the right to object any time they feel that what they created is being diminished,or used in a way they do not approve of! It is as simple as that! What is so hard?
    They WROTE THE SONG for F#$% Sake!! It is their creation! they own it! I find it dissapointing, disturbing and ultimately stupid that there is even a debate about this! In fact this is why we are in the mess we are in now. Slackers/Takers sucking the life out of the people that WORK!

  9. Can't really lump in copyrights with property tax. He is paying taxes on the value of his songs as the income streams in (definition of the value). Typical home or property ownership isn't a revenue source until it's sold. Any income that certain properties (rentals, commercial, etc.) generate is taxed.

    People can argue for or against Henley's point of view all day long, but it should be his right to disallow uses even though other artists and writers see a benefit in allowing amateur synchs and mash-ups to happen with their material.

  10. When you change the lyrics to an existing song for whatever reason, you still need the blessing of the copyright holder/writer of the original song and obtain a license to use it (just like a cover song) as a "dirivitive" work.
    I've done this, and if I were to "re-write" one of Henley's songs I would seek his approval and even invite him to take it over if he liked, as it is in fact his song. If he said no or I could not contact him then I would stop the project.
    The song that I "re-wrote" (sorry, not telling) and succeeded with was in fact sung by the same performer as the original that I "screwed with". He loved it! Respect the copyright owners and do a good job or don't re-write someone else's song.
    Youtube is not a "green light" to just upload whatever you want to, and we should see things change on that soon, as copyright laws start getting enforced again.

  11. Thank you, Mr. Sheffner for your insightful and comprehensive presentation of the facts regarding this landmark case. My personal and business mission is to make copyrights simple for the Christian community ( by providing education and solutions regarding copyright compliance. (I did cite your article in one of our blog postings). Fair use and parody are issues that often arise in the church environment. I have frequently advised churches to obtain permission before changing lyrics or adapting any original copyrighted work, as many believe it's "OK" to Christianize secular lyrics or make changes without asking permission. This particular case emphasizes the risks involved and the need to recognize the exclusive rights of the copyright owner and honor their original works.

    If churches are better informed about what does and does not qualify as a parody and Fair Use, then I believe they are equipped to make wise decisions when considering changing or adapting original copyrighted works.

  12. While I think the District Court probably got it right in the Devore case, Henley's comments in the interview sound just as crotchety and property-obsessed as the fat cats he used to rail about in his songs. Sad.

  13. For the Anonymous poster who called Henley a baby, you need to grow up. You tube and what it condones IS illegal. They are supporting file sharing of copywritten material, which Limewire was just found guilty of doing. By the way sending take down notices is timeconsuming and should not have to fall to the responsibility of copyright owner, websites (which You Tube is) should monitor their conent. No-one has the "right" to make mashups or remixes of what isnt theirs. Write your own song then, if you're so clever. What someone else said is true, it's not easy, it takes training, talent and dedication. And you Know what? You'll probably change your tune, especially if YOUR livelihood depended on it.

  14. First of all, we ALL know that thieves NEVER complain when they're stealing someone else's property, they only complain when prevented FROM stealing someone else's property. Thieves complain, too, when their property is stolen.

    In fact, try this test and see what happens: "BORROW" a remix from an "HONEST" remixer and put another person's name on it; or put a comment to the effect that says: "hey, I heard that before - it's by another artist from Denmark." And it won't take too long before they become Don Henley. I tried it - and you should see the comments that came back.

    In an case, way to go DON HENLEY - you da man!

  15. The most serious and DANGEROUS problem with the internet is people post things as if they KNOW what the fact, the truth or what the legal answer is, and they are SO the very uneducated and ignorant statement that Mash-ups are a completely legal endeavor for the most part. Mash-ups are completely ILLEGAL without the permission of the songwriter/artist/master owner.

  16. The fact of the matter is that the US Copyright law states that the copyright owner must enforce all copyright infringements that they know of or they loose their copyright. If you've made such a great video that just has to have a certain songs lyrics/music GET PERMISSION.

    Music copyright is a songwriters basis of income. They get paid on every use in Ringtones, Movies, CD's, (legitimate) Digital downloads and performances.

    YouTube pays copyright for the digital downloads and Ringtones it sells. It has agreements with several of the major labels. But that doesn't give people uploading videos to just pick their favorite song and use it as their soundtrack.

    Copyright has always been a problem for artists to enforce. Painters, Photographers, Sculptors all have people copying or using their work without permission or paying appropriate fees. Ususally, this unfair use has been as advertising in order to line someone elses pockets or in the case of politicians use a song to trick people.

  17. @Brigid: You write: "The fact of the matter is that the US Copyright law states that the copyright owner must enforce all copyright infringements that they know of or they loose their copyright." That is not accurate. You may be confusing copyright with trademark law. If a trademark owner does not enforce his copyright, it risks becoming generic. However, there is no corresponding duty to enforce in copyright; a copyright owner can pick and choose when to enforce his copyright, and does not risk losing his copyright by doing so.

  18. Google bought YouTube in 2006 for $1.65 billion dollars. As of October 2009, Google's market capital is $153.4 billion. As the copyleft and creative commons advocates seek ways to undermine © copyrights and turn a blind eye when knowingly accommodating abuse, they become more powerful to influence Washington to submit to there evil ways. However, Henley, who's management company Frontline Management merged with Live Nation and Ticket Master and created another monopoly. So the question is..whats the difference between screwing copyright holders and screwing concert ticket holders?.

  19. Dalton, your showing how little you know when you compare a
    business entity with a copyright holder. You may as well compare
    an apple with a lug bolt. A concert ticket is a choice for a one time
    performance, if you disagree with the system don't buy a ticket. A copyright is a legal process designed to protect the rights of someone who works hard at his or her craft in the hopes of making a living. Using it without permission is stealing. You can't change the facts. If you want to use a song ask permission, if that doesn't work for you
    then write your own song. (if you can)

  20. Google and You Tube need to have more legal pressure applied to them for their part in
    copyright infringement... PERIOD.

    They have too much power.

    A Composer

  21. Like buggywhip makers at the dawn of the age of the automobile, they're going to have to adapt. Just like the bricklayer who doesn't get paid every time his wall is used in perpetuity, but rather the one time around it goes up, so perhaps artists and other IP generators need to adjust that the revenue stream will be short lived at the beginning, and eventually will become part of the public commons. Copy right law got perverted in the late 90's with the DCMA, Sonny Bono law and other adjustments brought on by paid for politicians by the likes of such cash strapped concerns as Disney, Sony-BMG, Universal Studios. Me, personally if I was an already successful artist like Mr. Henley, would want as many people as could to generate derivative works off my stuff - it means I really had an impact on many sets of ears. It's time for the Doctrine of First Sale to regain primacy and some recent decisions by the Librarian of Congress indicates he is a sane thinker in this area.

  22. Anonymous 8/10 3:59:

    I'm not sure what you mean by "it's time for the Doctrine of First Sale to regain primacy." You speak of it as it would somehow sanction the wholesale infringement of copyright that exists in this case and in others. The first sale doctrine, from its inception, only embraced the ability to dispossess the physical embodiment of the copyrighted work. It has never, and will never, provide authority for the illicit taking of the copyrighted work itself.

    Implicit in your post is that this decision is somehow flawed because of things like the DMCA and the Copyright Term Extension Act. Let's imagine a world where neither one of those came to fruition. In fact, let's roll copyright term back to the way it was in the original act of 1790 - a 14 year initial term + a 14 year renewal term.

    The Boys of Summer was copyrighted in 1995. All She Wants to do is Dance was copyrighted in 1985. Even under the original 28 year term provided for 220 years ago, Don Henley would be well within his rights to protect his copyright from this misappropriation.

    So what, specifically, was your point?

    Also, in the event that you ever manage to get as successful as someone like Mr. Henley, and you have retained control over your copyrights, you are more than welcome to allow the unrestricted distribution and creation of derivative works. Nothing in the law prevents that.

  23. When does it go from protecting copyrights to just trying to stay relevant in an industry that has forgotten you several, several years ago?

  24. Let's protect all copyright holders using extreme prejudice against violators, but only after we reinstate a reasonable copyright monopoly term. 95 years is crazy, and benefits no one but the copyright holders. The current copyright laws violate the spirit of the constitution by a long shot.

  25. "The current copyright laws violate the spirit of the constitution by a long shot."

    That's a pretty bold statement. Would you care to back it up with facts?

  26. Don, I am 100% in agreement. The population NEEDS to understand that the work developed, the poems, lyrics, creative writing, research and investigation, IS the bread and butter of the creator of these items. Nobody likes that the fruit of labor is simply usurped away.


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