Wednesday, October 13, 2010

Grayson campaign ad apes 'Sopranos' opening; Henley v. DeVore redux?

The campaign of Rep. Alan Grayson (D-FL) has released a clever new ad -- one that closely mimics the opening of The Sopranos, only with Orlando rather than Northern New Jersey as the setting:

I don't think there's much of a copyright issue with the visuals in the Grayson spot; as far as I can tell, there's no copying of actual HBO footage, and I doubt HBO has a copyright in the idea of a montage of urban scenes from a driver's perspective. The much tougher issue for the Grayson campaign is the music, which appears to be a re-recording of the Sopranos theme (a song called "Woke Up This Morning" by British band Alabama 3 (aka A3)), with new lyrics that mock Grayson's opponent Daniel Webster (R). As to the music, the facts appear to be very similar to those in the Henley v. DeVore case, where the defendant also took a well known song and re-recorded it, substituting new lyrics attacking his political opponents. The court in the DeVore case soundly rejected the defendants' fair use argument, largely on the grounds that the campaign's use was satirical (using the work to poke fun at something else) rather than parodic (poking fun at the work itself). See Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) (explaining parody/satire distinction).

Here's some background from the Orlando Sentinel.


  1. Great article, Ben. Possible (c) infringement and TM issue re: use of HBO's static noise "chime" at the beginning?

  2. Ben,

    Your analysis tracks mine as well, with my sole additional observation being that the use of the musical score in this ad far exceeding that in the DeVore case. As for the lyrics, there are snippets interspersed throughout the new lyrics that are a part of the original lyrics. At the very least, it seems to me that Mr. Grayson's campaign has strayed much further from a "trying to keep a straight face fair use defense" that did Mr. DeVore.

    The first commenter also made note of an "intro" unique to HBO. Frankly, I had overlooked that possibility.

    Of course, all of this situation is merely theoretical if the rights holder to the music and/or lyrics are not inclined to press the matter (assuming they are even aware of it).

    Nonetheless, it does well illustrate a shift in campaign ads from the all too typical mudslinging to mudslinging with a popular song as background. I fear we will in the future see much more of the same, which disappoints me considerably that persons campaigning to be lawmakers appear to have little compunction about breaking the law.

    Mike S.


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