CLE event to explore uses of music in political campaigns

Next Wednesday, Nov. 17 I'll be participating in a CLE event that will explore various legal issues related to the use of music in political campaigns. Anyone can participate (for a fee) via telephone conference or live webcast hosted by the ABA. Details below:

The Politics of Fair Use: A Practical Discussion of Fair Use Principles Using Recent Examples of Popular Music in Political Campaigns Date: Wednesday, November 17, 2010 Format: Teleconference and Live Audio Webcast Duration: 60 minutes

Sponsors:

The American Bar Association Section of Intellectual Property Law, Forum on the Entertainment and Sports Industries and the ABA Center for Continuing Legal Education

12:30 PM-1:30 PM Eastern	11:30 AM-12:30 PM Central
10:30 AM-11:30 AM Mountain	9:30 AM-10:30 AM Pacific

Program Description

Recently, high profile politicians including John McCain, Charlie Crist, and Chuck DeVore have had lawsuits brought against them for using the music of famous musicians such as Jackson Browne, David Byrne, and Don Henley in their campaigns without receiving the necessary permissions and licenses. What rights do politicians have to use popular music at their live events and in advertisements? Are such uses a "fair use"? Our expert panel will discuss these issues and use them as a means to review principles of the Fair Use doctrine.

Program Faculty

Robert Clarida (Moderator) is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named “Copyright Firm of the Year” for both 2008 and 2009 by Managing Intellectual Property magazine. He has conducted jury trials, argued federal appeals, and served as lead litigation counsel in a number of reported federal copyright cases. He also counsels clients on non-litigious copyright matters, and has been the principal drafter of amicus curiae briefs on copyright matters in the U.S. Supreme Court and a number of Circuits, on behalf of organizations including the AIPLA, the Motion Picture Association of America, the New York City Bar Association, and the Recording Industry Association of America. Mr. Clarida speaks and writes frequently on copyright issues, is the author of the treatise Copyright Law Deskbook (BNA 2009), and the principal author of the annual review of copyright decisions published each year by the Journal of the Copyright Society of the USA.

Jacqueline C. Charlesworth is of counsel in the litigation department in the New York office of Morrison & Foerster LLP. Ms. Charlesworth's practice focuses on copyright law in the digital environment. She represents media, entertainment, and other clients in litigation, legislative, regulatory, and transactional matters. In addition to handling infringement matters, she has negotiated industry-wide licensing agreements to facilitate the development of online music services. She advises on copyright-related legislation and appears in proceedings before the
U.S. Copyright Office.

Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist. Currently senior counsel, Legal Affairs in the NBC Universal Television Group, Mr. Sheffner has also worked as senior counsel, Content Protection Litigation at Twentieth Century Fox, as litigation counsel in the NBC Universal Television Group, and as an associate in the Century City office of O'Melveny & Myers LLP. From July-November 2008, Mr. Sheffner served as special counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other intellectual property issues. Mr. Sheffner blogs at http://copyrightsandcampaigns.blogspot.com/, which was recently named as one of the top 100 legal blogs by the American Bar Association, and writes a regular column on legal issues in the music industry for the Billboard.

Andrew Sparkler is the associate director, Legal Corporate at the American Society of Composers Authors and Publishers ("ASCAP") where he focuses on legislative and international issues, as well as providing legal support to ASCAP's internal departments and The ASCAP Foundation. He is a co-chair of the New York Chapter of the Copyright Society of the U.S.A. In 2009, he was named the New York State Bar Association's "Outstanding Young Lawyer." Mr. Sparkler received his law degree from the Fordham University School of Law and his undergraduate degree from Brown University.

CLE Credit

1.0 hours of CLE credit in 60-minute states/1.2 hours of CLE credit in 50-minute states have been requested in states accrediting ABA teleconferences and live audio webcasts.*

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for1.0 total NY CLE credits.

The following states accept ABA teleconferences for CLE credit:
AL, AK, AR, AZ, CA, CO, FL, GA, IA, ID, IL, KY, LA, ME, MN, MO, MS, MT, NC, ND, NH, NM, NV, NY, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, WY.

*States currently not accrediting ABA teleconferences: DE, IN, PA, KS, OH

Click here to view a map of MCLE states

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.

Copyright battle in Ohio Gov. race over use of clip to expose 'steelworker' as actor

Here's a very interesting copyright battle going on in the Ohio governor's race. As described by EFF's Kurt Opsahl:

A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.

In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.

Given the facts as I know them, I'm with EFF on this one. The Ohio Democratic Party's use of clip was strictly non-commercial: to make a political point about Kasich's ad. And the clips they used were very short -- just long enough to demonstrate that the "steelworker" really wasn't. Arginate's action will have the unfortunate effect of keeping the video off YouTube at the height of the campaign. YouTube can re-post the video at any time; yes, it would lose the DMCA safe harbor as to this video, but it doesn't need any safe harbor given that the Ohio Democratic Party's inclusion of the clip is almost certainly a non-infringing fair use. YouTube has taken such a step before; it should do so again.

Update: as of the morning of October 8, the video has been restored to YouTube. I'll tryto find out whether Arginate withdrew its notice, or whether YouTube re-posted it on its own.

Further update: Google Senior Copyright Counsel Fred von Lohmann confirmed to me that YouTube did re-post the video on its own.

CDT releases report on campaign uses of copyrighted material

The Center for Democracy and Technology has released a new report documenting political campaigns' uses of third-party materials, and the copyright battles that sometimes ensue. Readers of this blog will be familiar with many of the incidents described in the report, but the author, CDT Policy Analyst Andrew McDiarmid, also unearths a few I was not aware of. While I might quibble a bit with the emphasis the report places on the notice-and-takedown provisions of the DMCA, I agree with its overall conclusion that too often content owners, particularly news organizations, have sought to enforce their copyrights out of concern for their reputational interests -- a form of damage that is really not cognizable in copyright law. Definitely read the whole thing.

Court sets trial date in Shepard Fairey case; Mannie Garcia drops out

The judge refereeing the dispute between the AP and artist Shepard Fairey over the "Obama Hope" poster has set a trial date of March 21, 2011. Of course, it's not certain there will actually be a trial; I expect one or both sides to seek summary judgment, and settlement is always a possibility.

Also, last Friday the AP and Mannie Garcia, the photographer who took the photo that served as the basis for Fairey's poster, voluntarily dismissed their claims and counterclaims. The two sides disputed whether the AP or Garcia owned the copyright in the photo. A source tells me that there was no "settlement," which suggests that Garcia simply dropped his claim. I have an inquiry in to his attorney and will update this post if I get additional information.

Update: The AP has released the following statement:

The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind -- this was not a settlement.

In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Mr. Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP's photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits.

Gawker Media settles Alabama libel case

Back in March, I blogged about a decision by a federal court in Birmingham Alabama that kept alive a libel suit by Confederate Motors, Inc. against Gawker Media and its auto blog Jalopnik.com. I'm way late to this, but less than two weeks after the court's decision, the parties informed the court that they had settled the case, and it was dismissed on June 7.

Shockingly, according to PACER, that leaves only one live case pending against Gawker in federal court: the "McSteamy" naked threesome copyright battle in the Central District of California.

Update: On June 11, Jalopnik published a correction of the original post, which reads in part, "[W]e do not have any proof that Confederate is 'unable to do business' in New York, as stated in the post, and regret any confusion the article may have caused." (h/t MediaPost).

'We Con the World' video kerfuffle: When Middle East politics meets the parody/satire divide

What do you get when you mix Middle East politics with ignorance of copyright law? Utter nonsense claiming that YouTube and Warner/Chappell Music have "censored" a pro-Israel music video -- a video that is very likely infringing.

The kerfuffle involves a video called "We Con the World" produced for Latma, a "media satire website" edited by journalist Caroline Glick. The video uses the tune from "We are the World" but substitutes a new set of lyrics mocking the supposedly "humanitarian" mission of the Gaza flotilla. Music publisher Warner/Chappell apparently sent DMCA takedown notices to YouTube, which removed some (though not all) copies of the video.

Now the pro-Israel and conservative blogosphere is up in arms, claiming that this incident is an example of "Israel's enemies ... trying to silence us," and "YouTube ...com[ing] down against the Israeli side in its editorial decisions," and even "a blatant act of Jew-hatred." Utter and complete nonsense. First of all, YouTube -- with extremely rare exceptions -- simply removes videos upon receipt of facially valid DMCA notices, no questions asked, and no legal analysis performed. YouTube -- which receives a very large volume of DMCA notices -- doesn't evaluate the political content of videos when acting on infringement notices; it simply removes the videos. And do these people attacking YouTube seriously believe that a company whose parent was founded by Sergey Brin and Larry Page (both Jewish), and a music publishing company whose parent is run by Edgar Bronfman, Jr. (son of a former president of the World Jewish Congress), were motivated by anti-Israel bias or "Jew Hatred"? Seriously?

Moreover, defenders of the video are wrong on the law. Glick insists that the video is a "parody" and says:

Copyright experts we advised with before posting the song told us in no uncertain terms that we were within our rights to use the song because we did so in accordance with the Fair Use Doctrine. The Fair Use Doctrine, copied and pasted below from the US Copyright Office stipulates that it is legal and permissible to use copyrighted material under the fair use doctrine for purposes of parody.

Glick doesn't identify the "copyright experts" with whom she consulted, but I'd be surprised if anyone truly expert in US copyright law and fair use would advise, as Glick says, that Latma's use was "clearly lawful." She and others can call "We Con the World" a "parody" until they are blue in the face, but under the Supreme Court's opinion in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), it almost certainly isn't. Campbell distinguished between "parody" and "satire" as follows:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. I think a court would most likely find that , under Campbell, the "We Con the World" video is a satire -- not a parody. It uses the "We are the World" composition to comment on the Gaza flotilla, "to get attention or to avoid the drudgery in working up something fresh"; any claim that it's actually commenting on the original song is weak at best. (It's not as if Israelis can't come up with catchy yet bellicose songs on their own; this ditty has been stuck in my mind since the 2006 Lebanon War.) The recent (still tentative) ruling in the Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley's songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore's argument that the use of Henley's songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn't exactly say, "If it's a parody, it's fair use; if it's a satire, it isn't." But that's how such cases usually play out.)

Glick and others are right on one thing, however: it's hard for any copyright owner to effectively scrub the Web of all copies of an allegedly infringing work. Others have re-posted the Latma video, and it's going to be tough for Warner/Chappell to chase down every last copy.

Intra-libertarian IP war: Rush v. Rand Paul

As first reported in the Louisville Courier-Journal, the libertarian-minded Canadian band Rush is battling the libertarian-minded Kentucky Republican Senate candidate Rand Paul over the latter's use of Rush songs in his campaign. Rush's attorney Robert Farmer has provided me the cease-and-desist letter he sent to the campaign May 25, demanding that Paul "immediately stop all use of Rush’s music and remove all references to Rush and their music in all campaign materials." Farmer's letter makes claims regarding three separate uses of Rush's songs by the campaign, each of which needs to be analyzed separately, and which I'll address in turn:

1) Use of songs in videos/ads. I haven't seen the videos (the one YouTube video referenced in the letter has been removed), so I'm reluctant to say for sure whether the uses at issue are infringing. But the general rule is that to incorporate music into an advertisement, one needs a license from the owner of both the sound recording (the record label), and the musical composition (the music publisher) -- which Farmer's letter certainly suggests the campaign lacked. If the campaign simply used Rush songs as the soundtrack for its videos/ads, it's unlikely it would have a successful fair use defense. Rush's claim here is likely valid.

2) Quoting from a song in a speech. Farmer's letter demands that Paul stop quoting lines from Rush songs in his campaign speeches. I don't know how extensive such quotations were. But let's assume they were just a few lines. If that is the case, it's hard to imagine any court would consider the use of such brief quotations in a non-commercial context anything other than fair uses. This would likely be a very weak claim.

3) Playing of songs at campaign events. This to me is the most interesting of Rush's claims. Normally, to play a song at an event, a campaign either needs to ensure that the venue has a public performance license, typically obtained from ASCAP, BMI, and SESAC, or it can obtain one itself. (When I worked on the McCain presidential campaign, we had ASCAP and BMI licenses.) Such licenses give the licensee permission to play any of the millions of songs in the PROs' catalogs.

"The Spirit of Radio," the song referenced in Farmer's letter, is licensed for public performance through SESAC. But what's interesting is Farmer's contention in his letter that "The public performance of Rush’s music is not licensed for political purposes: any public venue which allows such use is in breach of its public performance license and also liable for copyright infringement." I've looked at SESAC's licenses, and there's simply no exclusion for political uses (nor is there in ASCAP or BMI's). When I asked Farmer via email to explain his position, he was reluctant to go into much detail, but did tell me this:

Keep in mind that there is a chain of rights issue with the licenses issued by performing rights societies – they can only issue licenses for the rights they have obtained from the writer/publisher and subject to any limitations or exclusions.

In other words, Farmer is suggesting that the license that the writers/composers of Rush's songs issued to SESAC specifically excluded political uses. I haven't seen the agreement between those writers/composers and SESAC, so I can't say that he's wrong. But I can say that I've never heard of any contract with a PRO containing such an exclusion, and neither had several other copyright attorneys I asked.

But let's assume the songwriters/composers of Rush's songs actually did have such an exclusion in their contracts with SESAC. Farmer is correct: SESAC can't grant rights it doesn't have. So if SESAC couldn't grant rights (either to the venue or the campaign) for political uses, then those uses would indeed be infringing (though the venue or campaign might then have a claim against SESAC for misrepresenting that it had sufficient rights to allow them to publicly perform the songs). Of course, if neither the venue nor the campaign had a SESAC license, then the campaign is simply outta luck.

So what does the Paul campaign have to say about all this? Not much. The campaign has not responded to an email I sent this morning seeking comment. Farmer told me yesterday that the campaign had not responded to his letter. And Paul's campaign manager would only tell the Courier-Journal this:

The background music Dr. Paul has played at events is a non-issue. The issues that matter in this campaign are cutting out-of-control deficits, repealing Obama Care and opposing cap and trade.

Well, I'm sure the campaign would rather focus on subjects other than music licensing. But if it continues its current practices, especially with regard to ads and videos, it may not have much choice in the matter.

Court: AP 'is going to win' Shepard Fairey case

The judge presiding over the copyright dispute between the Associated Press and Shepard Fairey regarding the "Obama Hope" poster today indicated that the AP "is going to win" the case, and urged the parties to settle. According to the AP's report:

Federal Judge Alvin Hellerstein said Friday at a hearing in New York that he has a feeling that "whether it's sooner or later, The Associated Press is going to win" the case.

He suggested that artist Shepard Fairey and the news organization move on to settlement talks and consider dropping penalties. Neither side seemed ready to do so.

AP lawyer Dale Cendali says the news organization wants to make it clear that the AP owns the copyright to the photograph that Fairey used to create the "HOPE" poster and that he violated the copyright.

As far as I'm aware (unless it was changed at today's status conference), the parties' summary judgment motions on liability are still due July 26.

Update: A later report by the AP includes the following:

U.S. District Judge Alvin Hellerstein made the suggestion at a hearing in which he ordered Fairey's lawyers to turn over records of communications Fairey had with his lawyers before he sued the AP in February 2009. He also said AP lawyers can depose Fairey a second time.

While it's hard to say for sure what happened without seeing a transcript (which I haven't), it appears the AP's attorneys successfully invoked the crime-fraud exception to the attorney-client privilege to get at the the communications between Fairey and his lawyers. As background, Fairey is under federal criminal investigation for perjury and evidence tampering, based on his admitted falsehoods regarding which photograph he used as a basis for the "Obama Hope" poster.

David Byrne sues Charlie Crist over use of 'Road to Nowhere' in campaign video

Here we go again. David Byrne has sued Florida Senate candidate Charlie Crist for using the 1985 Talking Heads hit "Road to Nowhere" in a YouTube video that promotes his campaign. Reports Billboard:

Byrne is seeking $1 million in damages from Gov. Charlie Crist, who's also Florida's former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. Crist has since changed his campaign and is running as an independent candidate.

***

Byrne tells Billboard.com that he became aware of the Crist ad from a friend in New York, where the Talking Heads co-founder resides. "I was pretty upset by that," says Byrne, who had Warner Bros. Records contact the Crist campaign, which subsequently stopped using the ad. But, Byrne contends, "in my opinion the damage had already been done by it being out there. People that I knew had seen (the ad), so it had gotten around. The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."

I'll post the complaint when I get my hands on it. Of note, Byrne's attorney is Larry Iser, who represented Jackson Browne in a similar suit against John McCain, the RNC, and the Ohio Republican Party based on a 2008 ORP web video that incorporated part of Browne's song "Running on Empty."

It won't surprise me if we see a dozen more lawsuits exactly like this one before November.

Update: Here's the complaint, which includes claims for direct and vicarious copyright infringement and a claim under Section 43(a) of the Lanham Act, based on the theory that Crist's video falsely implied that Byrne endorsed Crist's Senate campaign.
David Byrne v. Charlie Crist Complaint

Kagan's RIAA brief revealed: 'As Nasty As They Wanna Be' fails to 'physically excite,' 'arouse'

The truth can finally be known: Elena Kagan is not "turn[ed] on" by 2 Live Crew. Not even by the Crew's 1989 masterwork As Nasty as They Wanna Be, which included such classics as "The Fuck Shop" ("There's only one place where we can go/Where the price is right just to fuck a ho."); "Dick Almighty" ("It's 15 inches long, eight inches thick/Last name almighty first name is dick."); and "If You Believe in Having Sex" (just click the damn link yourself; this is a family blog). For, as Kagan boldly proclaimed in a 1990 amicus brief she drafted for the RIAA, arguing that the album was not obscene under the three-prong Miller test:

Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.

"Anyone"? Really??? (Not even her kinky BFF?)

Kagan (who presumably falls within the category of "anyone") may not be "excite[d]" or "arouse[d]" by the Crew's oeuvre, but she does, with a straight face, argue that it contains "serious artistic value." Oddly, though, she apparently couldn't find any examples of such in the album itself; she cites none. Rather, her brief, written while she was an associate at Williams & Connolly, relies on Leonard Bernstein for the proposition that all music has "inherent value" (with props to Justice Scalia for noting that "ratiocination has little to do with esthetics"). (All music has value; Nasty is music; therefore Nasty has value. Q.E.D.!) She also notes that at least one song has political value; apparently "Dick Almighty" ("They took a dick from California, transplanted that mutha fucka to Washington DC and it fucked the nation") was a reference to none other than our 37th president, Richard Milhous Nixon. Who knew??

Whatever one may think of Kagan's characterization of Nasty, one can't argue with success; the 11th Circuit bought her arguments. See Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) (reversing district court's ruling that the album was obscene, see Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990)).
RIAA amicus brief in Luke Records, Inc. v. Navarro

Kagan confirms: I represented the RIAA

It's been reported before, but in her just-released Senate Judiciary Committee questionnaire (p. 193), Supreme Court nominee Elena Kagan confirms that she once represented the RIAA while in private practice. The case was Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992), an appeal of a district court's ruling that The Two Live Crew's album As Nasty As They Wanna Be was obscene. As McClatchy reported:

Before Harvard, there was 2 Live Crew.

The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny." Nick Navarro, the sheriff of Florida's Broward County, thought it went too far.

"I'm a freak in heat, a dog without warning," the rappers sang. "My appetite is sex, 'cause me so horny."

U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.

The group's attorney, Bruce Rogow, said in an interview that he encouraged the Recording Industry Association of America to file a friend-of-the-court brief. The association hired Williams & Connolly, and Kagan drafted the brief, later explaining that she "stressed the difficulty of finding music obscene under prevailing constitutional law."

In 1992, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously threw out the trial judge's decision.

"It was nicely done, and it was certainly helpful," Rogow, who's a professor at Nova Southeastern University's law school, said of Kagan's brief. "But I think the outcome would have been the same regardless."

How long before the usual suspects' heads start exploding?

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.

Can a candidate post an entire news story to YouTube?

The reelection campaign of Senate Majority Leader Harry Reid (D-NV) has posted to its official YouTube channel an entire local news story reporting on his GOP opponent Sue Lowden's "chicken for checkups" flap:



The video, which lasts 3 minutes, 15 seconds, is simply an entire news story from KTVN, the CBS affiliate in Reno; the the campaign hasn't added anything or altered the video in any way. The purpose of posting the video is crystal clear: to keep Lowden's gaffe in the news, in the hopes it sinks her campaign. I think any fair use argument would be weak. (I have no idea whether KTVN objects to this use.)

The point of this post isn't to single out Reid. I'm sure many other campaigns, of both parties, are engaging in similar practices. My point is simply that many campaigns and political observers are likely committing copyright infringement in their web video tactics, and there are bound to be numerous DMCA takedown imbroglios -- and perhaps even a few copyright lawsuits -- over the course of the cycle. Some of these takedowns will be legitimate; I'm sure others won't. Fair use should be at its height in the course of a political campaign. I would suggest campaigns familiarize themselves with at least the basics of copyright before they start letting staffers post video to the web. And I'd urge news organizations to post clear guidelines as to what they consider acceptable uses of their material. There are endlessly fascinating fair use and First Amendment arguments here, but it's better for both sides to have a good sense of the rules of the road, so that they can concentrate, respectively, on campaigning or reporting, rather than litigating.

Henley, DeVore file dueling briefs in copyright battle; are campaign videos fair use 'parodies' or infringing 'satires'?

Both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign "parody" videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material.

The motions focus largely on one issue: whether the videos, which use the compositions "The Boys of Summer" and "All She Wants to do is Dance," are indeed "parodies," and thus likely fair uses, or, rather, unprivileged "satires." That's a dichotomy endorsed by the Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), which distinguished the two concepts as follows:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. (It's a distinction the journalists covering the "Downfall" controversy should recognize before they automatically label those videos "parodies." The vast majority aren't. Much of the coverage has been really terrible, simply labeling them all parodies without any nod to the actual legal definition.)

For Henley, this is a simple case: DeVore's videos do not comment on Henley's songs. Rather, they use Henley's songs to mock Boxer:

Defendants' assertion that their Internet videos, which feature full-length renditions of Plaintiffs' songs targeting President Barack Obama and Senator Barbara Boxer for the purpose of promoting DeVore's senatorial ambitions, are fair use "parodies" of Plaintiffs songs is an excuse manufactured after the fact. Defendants did not select Plaintiffs' popular musical compositions because they sought to mock, criticize, or comment on them. Rather, defendants took Plaintiffs' songs as instantly recognizable vehicles to broadcast their messages, which have no relation to Plaintiffs or their artistic works.

And Henley's brief cites evidence that DeVore and his campaign used Henley's songs, and fomented this lawsuit, largely to gain free media attention and raise money as he faced two better-funded GOP primary opponents in Carly Fiorina and Tom Campbell. Notably, Henley hired a total of four experts to bolster his claims: an English professor, a musicologist, a licensing consultant, and a survey expert. No one can accuse him of waging this lawsuit on the cheap.

DeVore's brief has a more difficult task: convincing the court that the videos can fairly be characterized as parodies:

Plaintiffs contend that Defendants' works are not parodic because they attack Barack Obama, Barbara Boxer, Al Gore, and others. They do, of course. But under Campbell, parodies are not limited only to those works that target only the original work or author. Instead, the question is whether the work at issue "is one that, at least in part, comments on that [original] author's works. Id. at 580."

DeVore goes on to argue that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and indeed asserts that the campaign chose to use Henley's songs for precisely that reason. DeVore also argues that the campaign's uses are fair even if they are more appropriately characterized as satires, citing Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), in which the Second Circuit found fair use in artist Jeff Koons' use of a photograph in a larger work.

DeVore's brief is indeed effective in dispelling the common oversimplification that "If it's parody, it's fair use; if it's satire, it's not." As the Supreme Court itself stated in footnote 14 of Campbell, it's not quite that simple:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work tocome within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

That said, under current Ninth Circuit law, I still think Henley is more likely to prevail here. DeVore's videos target Henley only in the loosest sense, and his brief's arguments that they are a comment on the specific lyrics of "The Boys of Summer" and "All She Wants to do is Dance" sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).

As I've said before, litigation -- and more, commonly, DMCA takedown notices to YouTube and ISPs -- involving campaign uses of others' copyrighted material is going to become increasingly common, given the cheap and easy ability of both campaigns themselves and interested third parties to create web videos that incorporate music, movies, and TV footage (including news broadcasts). The ruling in this case will likely help set the rules of the road for what campaigns and their supporters can and cannot do.

Opposition briefs are due by May 3, 2010, and replies fourteen days later. A hearing is set before Judge James Selna in Santa Ana June 1. Everyone involved in campaign media should be watching.

District of Massachusetts may amend local rule to permit courtroom broadcasts

Last April, the First Circuit barred the live webcast of proceedings in the major record labels' copyright case against Joel Tenenbaum. The Court of Appeals' decision rested not on the wisdom of courtroom broadcasts, but on its interpretation of District of Massachusetts Local Rule 83.3, which addresses "recording, or mak[ing] any broadcast" from a courtroom. While he concurred in the decision overturning a previous order by Judge Nancy Gertner permitting the webcast, Judge Kermit Lipez urged that the rule prohibiting courtroom broadcasts "be reexamined promptly."

The District of Massachusetts has now taken up Judge Lipez's suggestion, and on February 17 distributed for public comment a proposed new Rule 83.3, which would allow any judge to permit "the photographing, recording, or transmission of any civil proceeding" in his or her courtroom, "after notice and an opportunity to interested persons or entities to be heard."
District of Massachusetts proposed new L.R. 83.3

The new proposed Rule 83.3 does include a number of restrictions, including prohibitions on photographing jurors and sidebar conferences, and it grants any witness or party the right to opt out of allowing "photographing, recording, or transmission of that person’s recognizable images." The proposal also provides that judges "may impose such limitations and restrictions on the use or further dissemination of recordings or images." That power (found in proposed Rule 83.3(d)(2)) concerns me; once a recording has been lawfully made, it seems awfully invasive of First Amendment interests to allow a judge to unilaterally decide how that recording may be "use[d]" or "disseminate[d]." Could a court order that a webcast be shown only in its full, unedited state? Or only played on TV, but not on that pesky Internet? Would its orders bind others who might take the raw footage, and edit it for their own purposes?

But overall, the new rule would be a giant step forward, and I hope it is adopted. I don't know the process for the promulgation of new rules in the District of Massachusetts, but the Court is inviting public comment on the proposed amendment; comments are due April 16 (but, unfortunately, seem to be accepted only by snail mail).

Disclosure: I signed on to an amicus brief in the First Circuit in support of the webcast.

Chuck DeVore moves for summary judgment in Don Henley copyright suit; argues fair use of songs in 'parody' videos

Chuck DeVore, the Republican Senate candidate who used Don Henley's songs "The Boys of Summer" and "All She Wants to do is Dance" in campaign videos intended to promote his campaign against Sen. Barbara Boxer (D), has filed a motion for summary judgment in the copyright and Lanham Act suit brought by Henley. DeVore's primary argument is fair use. I'll have analysis later, but, for now, enjoy:
Chuck DeVore Motion for Summary Judgment

Google/YouTube: We're not 'targeting a journalist'

Business Insider picked up my post about Google and YouTube lawyer Andrew Schapiro's statement last week at a hearing in the Viacom/Premier League copyright suit that he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009. Business Insider's post originally ran under the headline, "Google Threatens to Subpoena CNET Journalist To Find Out Who Ratted On Eric Schmidt," and it still features a picture of a Chinese anti-government activist throwing a rock at a line of riot police, with the caption, "Google's attorneys are coming..." In response, Google issued a statement to the site:

This headline is completely inappropriate, and the image caption is in shockingly poor taste. The judge ordered that this investigation take place, so this is in no way Google targeting a journalist. Keep in mind that all the documents in the case were under seal, and it was illegal to leak them. Comparing this to China is beyond absurd, and the story needs to be changed immediately, esp since our attorney never mentioned anything about a subpoena.

Putting aside the propriety of the China photo and caption, Google's complaints are far off the mark. To say that "[t]he judge ordered that this investigation take place, so this is in no way Google targeting a journalist," ignores the fact that: 1) the jury trial that may take place would be a trial on Google's motion for terminating sanctions against suspected leaker Robert Tur; and 2) it was Google's lawyer who told the judge, "I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial." Google has every right to pursue sanctions against Tur if it believes he violated the protective order. But once it does so, its flack can't then blame it all on the judge. Moreoever, the judge did not force Schapiro to express "interest[]" in "hearing from Mr. Sandoval" at the trial. When the judge raised the issue of asking Sandoval who was his source, Schapiro could have said, "Your Honor, we're Google. We're strong supporters of the First Amendment. We respect the right of journalists to report the news. We don't drag them into court proceedings, and we certainly don't ask them to reveal their confidential sources." Instead, he expressed "interest[]" in "hearing from" Sandoval -- clearly an indication that he may seek his testimony.

To the extent that Google is objecting to Business Insider's (and impliedly, my) use of the word "subpoena," its complaint is silly. True, Schapiro did not use the word "subpoena." But he didn't need to; I'm sure everyone in the courtroom knew he was referring to the possibility of subpoenaing Sandoval. Schapiro stated in open court that he "would certainly be interested...about hearing from Mr. Sandoval if there were going to be a trial." How else but through a subpoena would he "hear[] from" a reporter? At a trial, the way to summon non-parties (including journalists) to the witness stand is via subpoena. The notion that a reporter would voluntarily waltz up to the witness stand and reveal his sources without need for a subpoena -- which I'm sure would be vigorously contested by CNET and its parent CBS, and probably a bevy of press amici -- is fantasy. Moreover, Schapiro's acknowledgment that seeking to "hear" from Sandoval at trial would result in "other complications" is a recognition of the fight that would ensue if Google actually did follow through and seek to force Sandoval to testify.

Lastly, perhaps what's most telling about Google's statement to Business Insider is what's missing: A denial that it will seek Sandoval's testimony. Google could quickly clear this all up by definitively stating that it will not call him, and will not ask him to reveal his sources -- through a subpoena or otherwise. Should Google say that, I will be glad to print it. Until then, the most definitive statement we have is from its lawyer, who told a federal judge that he would "certainly be interested ... about hearing from Mr. Sandoval if there were going to be a trial." Sounds a lot like "targeting a journalist" to me.

Motorcycle maker's libel suit vs. Jalopnik and Gawker Media survives motion to dismiss

A federal court in Alabama has refused to dismiss a motorcycle maker's libel suit against Jalopnik.com, the auto blog owned by Gawker Media. The suit, filed by Birmingham-based Confederate Motors, Inc. ("CMI") against Jalopnik and Gawker Media, also names as defendants Wes Siler, the author of the allegedly libelous post, and Grant Ray, a former employee of CMI whom the complaint says is employed by one of the defendants. (Defendants say "Ray is not, and has never been, employed or affiliated in any way with Gawker." Motion to Dismiss at 2 n.3. Ray has not been served.)

The offending April 9, 2009 post on Jalopnik describes CMI's high-end motorcycles -- Tom Cruise and Brad Pitt are apparently fans -- as "so unreliable that you'll probably have to push them." But CMI's complaint actually focuses not on that statement, but on Jalopnik's claim that "last we heard the Alabama-based company was being sued so heavily in state courts by disgruntled owners that they were unable to do business here," i.e., in New York. CMI's complaint charges that Jalopnik's post carries the "misleading implication is that CMI has been repeatedly sued in many state courts by disgruntled owners," and includes causes of action for libel per se, tortious interference with business relations, gross negligence, and libel per quod. (Oversimplifying a bit, libel per se refers to a statement that is defamatory on its face; libel per quod covers statements that are defamatory only in context, and requires proof of actual monetary damages.)

On March 24, Magistrate Judge John Ott granted the defendants' motion to dismiss the libel per se and gross negligence claims, but denied it as to libel per quod and tortious interference with business relations. The court agreed that the language about the alleged unreliability of CMI's motorcycles was opinion, incapable of defamatory meaning. Order at 12 & n. 5. But it concluded that the post's statement about the lawsuits allegedly filed in state courts against CMI "is more akin to a statement of fact than an opinion" and thus "is reasonably capable of a defamatory meaning sufficient to survive the motion to dismiss." Id. at 12. Here's CMI's opposition, and the defendants' reply.

CMI remains far from victory; its libel and tortious interference claims seem rather thin to me (its argument is based at least in part on the distinction between "Confederate Motors, Inc." and its predecessor "Confederate Motor Company, Inc."), and it will still have to survive a summary judgment motion and a trial. But ask yourself: If you were a New York-based auto blog and snark-based media company, would you really want to face a jury in defendant's hometown, where the company's arrival was celebrated by the motorcycle-riding governor? And I don't expect CMI to give up easily; its founder and CEO Matt Chambers happens to be a former plaintiffs' attorney.

Google may subpoena CNET reporter in copyright case leak probe; hearing reveals massive hunt for source of Schmidt depo

An attorney for Google and YouTube indicated today that the Web giants may call a prominent tech reporter to the witness stand in an effort to reveal who leaked the journalist confidential documents from the ongoing Viacom and Premier League copyright cases.

Speaking today at a hearing before federal judge Louis Stanton in Manhattan, Google/YouTube lead trial counsel Andrew Schapiro of Mayer Brown LLP said he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009.

Today's hearing focused on allegations that the leaker was Robert Tur, a Los Angeles television journalist who is one of the named plaintiffs in the Premier League putative class action. Schapiro, citing "overwhelming" circumstantial evidence collected during the course of discovery, charged that Tur violated the court's protective order governing confidential information, and said that his clients are seeking to have Tur's copyright claims dismissed as a sanction. Tur's attorney Seymour Fagan adamantly denied that his client leaked: "[T]here should be no sanctions against Mr. Tur for any acts on his part because he did not participate in the leak to Mr. Sandoval."

In order to determine whether Tur leaked to Sandoval, Judge Stanton indicated that he may take the extraordinary step of holding a separate jury trial on just that issue:

The jury would determine the matters of fact, I would rule on the remedy, and if it reaches that point, there will be a short jury trial, like a separate trial on the issue of statute of limitations. The main question being, was there a breach of my order by Tur or [Tur's ex-wife].

Today's hearing revealed for the first time that an extensive investigation of who leaked to Sandoval has been occurring out of public view over the past several months. Schapiro said that "we" -- it wasn't clear whether he was referring to his law firm or to his client -- "gathered over 70 affidavits and declarations," apparently in an effort to prove that the leak did not come from Google/YouTube or its lawyers. Schapiro even told the court that "all phone records and e-mails have been searched" at Mayer Brown, but "nothing was found."

Judge Stanton asked Schapiro whether anyone had asked Sandoval directly who had leaked to him; Schapiro indicated that Sandoval had declined to reveal his source's identity during a conversation with a Google PR representative. It was then that Schapiro indicated his interest in putting Sandoval on the stand:

I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial.

The "other complications" Schapiro was referring to is the likely ferocious fight CNET and its parent CBS would wage to keep its reporter from having to reveal his source, or sources. (In one of the articles at issue, Sandoval cited "three sources with knowledge of the case.") The Second Circuit does recognize a qualified reporter's privilege in civil cases, requiring disclosure of a confidential source "only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982).

At the close of today's hearing, Judge Stanton gave permission for Google/YouTube to file its motion for terminating sanctions against Tur, and again indicated that he believes "a short, simple jury [] trial ...which will determine the rights and wrongs of the situation" is "the proper way to dispose of this." And he added, "[T]his is an important question, not a trivial one. It has got to be dealt with seriously and proper." Stanton also ordered the unsealing of several documents in the case related to the Tur matter, though they have not yet been posted to PACER. Those documents will likely reveal additional detail about the extent of Google's hunt for the source of the leaks.

It is unclear what effect, if any, Tur's potential dismissal from the case would have (other than the obvious effect on Tur himself). Viacom would remain as a plaintiff, as would the Premier soccer league, numerous music publishers, and a putative class that includes virtually every copyright owner whose works have allegedly been infringed via YouTube since April 15, 2005.