Tuesday, April 21, 2009

Don Henley's 'Boys of Summer' suit: a DMCA first?

Don Henley's complaint against Chuck DeVore is now public, providing additional detail about the California GOP Assemblyman's use of "The Boys of Summer" and "All She Wants to Do Is Dance" in videos promoting his 2010 campaign against Sen. Barbara Boxer (D-CA).

First, let's sort out the parties, the works, and the causes of action, because it's a bit complicated. The plaintiffs are Henley and Mike Campbell, a songwriter and guitarist for Tom Petty and the Heartbreakers. According to the complaint, Henley and Campbell wrote the musical composition for "The Boys of Summer" and jointly own the copyright. They are both suing DeVore and his campaign's Director of New Media and Internet Strategies, Justin Hart, for direct, contributory, and vicarious copyright infringement over the use of the "The Boys of Summer" in what DeVore has termed a "parody" that substitutes a new set of lyrics attacking Boxer for the original. In addition, Henley (but not Campbell) asserts claims for false association or endorsement under Section 43(a) of the Lanham Act, and a similar claim under California Business & Professions Code section 17200.

As for "All She Wants to Do Is Dance," neither Henley nor Campbell claims to own the copyright. (The composition was written by Danny Kortchmar.) The only claims on "All She Wants" are by Henley under the Lanham Act and 17200, on the theory that DeVore's video falsely implies that Henley -- a well-known liberal activist -- endorses the conservative Republican's campaign against Boxer. (I count at least $9,000 in contributions by Henley to Boxer's campaigns over the past decade.)

One interesting bit of legal history (I think): according to the complaint, Henley sent a DMCA takedown notice to YouTube on the "The Boys of Summer" video on April 3, and DeVore responded with a counternotice April 7. This lawsuit was filed April 17 -- 8 business days after the counternotice. As far as I am aware, this is the very first time a copyright owner has filed a lawsuit based on a YouTube video within the DMCA's 10-14 day window during which the content owner may inform the host that he has initiated an action, signaling that it should not re-post the material (if it wants to maintain its safe harbor). If anyone knows of an earlier example, please let me know in the comments.

Henley and Campbell are represented by a team at Morrison & Foerster that includes Stanford Law School professor Paul Goldstein, who is Of Counsel to MoFo. The case has been assigned to Judge James Selna, who sits in Santa Ana.

UPDATE: I have learned that DeVore and Hart will be represented by Chris Arledge of Turner Green Afrsiabi & Arledge LLP. This case is turning into a mini O'Melveny & Myers reunion. Judge Selna is a former OMM attorney, as is Arledge (and I). And OMM previously represented Henley and the Eagles in a lawsuit (since dismissed) brought by former Eagles member Don Felder. (For the record, I do not believe the relevant statute requires Judge Selna's recusal.)

(h/t THR, Esq. and Courthouse News Service.)

1 comment:

  1. Holy moley, I can't believe these songs are involved in a 21st century case. "All She Wants to Do is Dance" was originally used by the Taft campaign, and I'm pretty sure that "Boys of Summer" refers to the summer of 1841. I can't believe Justin Hart has "new" in his title.


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