Court: Merchandising of Shepard Fairey 'Obama Hope' image not fair use; factual issues remain on substantial similarity

The court in the case involving Shepard Fairey's use of an AP photograph in his famous "Obama Hope" poster has ruled that a company that manufactured and distributed clothing bearing the Obama Hope image under license from one of Fairey's corporate entities did not engage in fair use. The court, however, held that there remains a factual dispute whether the images used by One 3 Two, Inc. on its merchandise were "substantially similar" to the AP photo. Judge Alvin Hellerstein did not explain his reasoning in his brief summary order. Trial on the remaining issues is set for March 21. Here is One 3 Two's opening brief, and the AP's.
Shepard Fairey Summary Judgment Order

The claims between the AP and Fairey and his corporate entities have been dismissed pursuant to settlement.

AP and Shepard Fairey settle case; claims against corporate entities remain

The Associated Press announced that it has "settled in principle" its copyright case against artist Shepard Fairey over his use of an AP photograph in the iconic "Obama Hope" poster. The announcement of the settlement comes a little more than seven months after the judge in the case stated at a hearing, "sooner or later, The Associated Press is going to win" the case and urged settlement.

According to the AP's announcement:

In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the image and share the rights to make the posters and merchandise bearing the image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.

The AP's claims against other Fairey-related entities, however, remain. So do its claims against One 3 Two, Inc., a company that manufactured and distributed clothing bearing the Obama Hope image under license from Obey Giant, one of Fairey's entities. One 3 Two's summary judgment brief argues that it didn't copy protectable elements of the AP's photo but, for procedural reasons, does not address fair use. The AP's brief does argue that Fairey's and One 3 Two's use of its photo was not fair.

Still unknown is the status of the federal grand jury investigation of Fairey for his admitted falsehoods and evidence spoliation regarding which photograph he used as a basis for the poster.

New House Judiciary Chaiman Smith vows to protect IP

Rep. Lamar Smith (R-TX), currently the ranking Member on the House Judiciary Committee, announced today that he will serve as chairman in the next Congress. And he made clear that he will continue the committee's strong support for intellectual property rights:

As Chairman of the Committee, I will focus on efforts to strengthen national security, protect intellectual property, prevent frivolous lawsuits and keep children safe from Internet sex predators. The Judiciary Committee will support industries that employ millions of Americans by protecting their patents and copyrights.

(h/t TechDailyDose)

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.

NFL demands Feingold campaign remove clips from ad; Senator quickly complies

The National Football league today demanded that the campaign of Sen. Russ Feingold (D-WI) remove clips of actual NFL footage from a campaign ad. The Feingold campaign quickly complied.

Here's the original ad:


And the edited version:

Fox news and correspondent sue Senate candidate over use of news footage in ad

Fox News and its correspondent Chris Wallace have sued the campaign of Senate Candidate Robin Carnahan (D-MO) over her campaign's use of Fox footage in a TV ad attacking her opponent, Roy Blunt (R). As first reported by THR, Esq., the complaint, filed in the Western District of Missouri on Wednesday, alleges copyright infringement and two forms of violation of Wallace's right of publicity under Missouri law.

The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:

The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.

The Kansas City Star described the ad as follows:

“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.”

The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.

Without having seen the ad myself, I'm not going to offer an opinion on the ultimate merits of the suit. But I do have a bit of skepticism about the copyright claim, for at least two reasons. First, the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest. And second, the complaint asserts that the campaign's use of the Fox footage "allows Defendant to profit commercially without paying the traditional price." But that statement appears to contradict the thrust of the complaint, which is that Fox would never license such footage to a campaign, because it would damage its reputation. In other words, there is no "price" here, "traditional" or otherwise. Moreover, courts have rejected the argument that campaign uses of third-party material are "commercial" simply because they are used to solicit contributions. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (use of trademark in a political campaign ad was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004) (even if a candidate’s ad resulted in increased contributions, the ad would still not be “commercial;” “If so . . . all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions”).

As for the right of publicity claims, I am not familiar enough with the specifics of Missouri law to say anything too definite. I would just point out that courts are very protective of First Amendment interests in the political context, see, e.g., Meyer v. Grant, 486 US 414 (1988) (First Amendment interests are "at its zenith" in the political realm), and there are strong arguments for limiting right of publicity claims to truly commercial uses of an individual's name and likeness.

(Updated with additional detail about the ad.)

Commerce Secretary rails against 'scourge of music piracy'

In a speech today in Nashville, Commerce Secretary Gary Locke promised action against the "scourge of music piracy," repeating Vice President Biden's proclamation that "Piracy is flat, unadulterated theft," and vowing that "it should be dealt with accordingly." Locke said his department is "conducting a comprehensive review of the relationship among copyright policy, creativity, and innovation in the Internet economy" and reiterated the Obama Administration's support for the Performance Rights Act, which would require terrestrial radio stations to pay royalties to owners of sound recordings. The current state of affairs, where songwriters and composers, but not recording artists, get paid for airplay, "makes absolutely no sense," said Locke.

Go read the whole thing, including Locke's entreaty to "content owners and Internet service providers [] to work collaboratively to combat intellectual property infringement online" and "[e]specially to combat repeat infringement."

'Cruel Summer' campaign video removed

The video from Congressional candidate Sean Mahoney (R-NH) that featured the Bananarama hit "Cruel Summer" has been removed from several web video sites, apparently by the campaign itself.

Jimmy Asci, a spokesman for music publisher Sony/ATV, which owns the composition to the 1983 single, confirmed that the Mahoney campaign had used the song without obtaining a license, and that the video was removed before a cease-and-desist letter was even issued. "It wasn't licensed," he said. "This happens all the time. 99.9% of the time, they take it down" upon receipt of a notice, according to Asci. "We don't really go any further than that."

It's notable that of the three recent copyright lawsuits involving campaigns of which I'm aware -- Jackson Browne v. John McCain, Don Henley v. Chuck DeVore, and David Byrne v. Charlie Crist -- all involved individual songwriters as plaintiffs, not publishers or record labels. Corporations simply want campaigns to knock off their unlicensed uses. Individual artists -- who often have strong political views of their own, and strong feelings about unwanted uses of their material -- tend to demand a pound of flesh.

Could 'Cruel Summer' campaign video lead to a cruel copyright lawsuit?

A Republican House candidate from New Hampshire has used over a minute of the 80s hit "Cruel Summer" in a campaign video attacking his Democratic opponent, Rep. Carol Shea-Porter. The video from the campaign of Sean Mahoney -- which identifies itself as a "political parody" -- argues that the economic policies of Shea-Porter and the Obama Administration "have given us a cruel summer."

I have inquiries in to the Mahoney campaign as well as what I believe to be the copyright owners (Sony/ATV for the publishing and London Records for the master), to confirm what I strongly suspect: that the campaign did not get licenses for this use. (I will update this post when and if I hear back.) The self-imposed "parody" label notwithstanding, I think the copyright owners would have a very strong claim if they decided to pursue this. California Senate candidate Chuck DeVore (R) had a much more plausible claim to parody than does Mahoney -- and it was still a loser.

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.

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.

Kagan wins coveted Luther Campbell endorsement; rapper praises 'my homegirl' for obscenity stance

Well, this ought to put her over the top. Former 2 Live Crew Member Luther Campbell, who was saved from a possible obscenity prosecution in part with the help of a young Williams & Connolly associate named Elena Kagan, has repaid the favor, endorsing the Supreme Court nominee in a Miami New Times op-ed:

In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album "does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." In other words, my homegirl Kagan was saying people could not be aroused by the lyrics "'cause my dick's on bone" or "me so horny, me fuck you long time." She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew's behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.

Campbell, of course, has an undefeated record at the Supreme Court. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

(h/t Above the Law)

Nevada Senate candidate objects to opponent's posting of earlier version of web site

Talking Points Memo reports on a campaign IP kerfuffle in Nevada, where Senate Majority Leader Harry Reid (D) is fending off a challenge from Sharron Angle (R). The Reid campaign apparently posted a cached copy of an earlier version of Angle's web site, in an effort to show that she had "toned down her right-wing rhetoric" in the current version. A cease-and-desist letter from the Angle campaign's attorney followed.

The TPM story suggests that the Angle campaign was simply complaining about Reid's use of its copyrighted material. If that were so, I would think the copyright claim would be weak; the fair use and First Amendment arguments in favor of allowing a political candidate to post his opponents' campaign material in order to comment on it would be strong. See, e.g., Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978) (rejecting copyright claim in campaign context; emphasizing that "The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").

But it's clear from the C&D letter that the Angle campaign is not actually making a copyright claim. Rather, they are concerned that the Reid campaign, by posting the former Angle web site, which included a form for supporters to submit their names and email addresses, may have been harvesting those on their own, and misleading Angle supporters who genuinely wanted to submit their names to her campaign -- not Reid's. Indeed, the actual demand in the C&D letter is confined to this point:

[W]e demand that the Reid campaign immediately cease its nefarious actions of requesting and obtaining the names, email addresses, and zip codes under false pretenses from unsuspecting supporters of his opponent, Sharron Angle.

According to TPM, the Reid campaign acquiesced and took down the site. It's one thing to post an opponent's words to comment on or criticize them; I would support the Reid campaign's right to do just that. But it's quite another to trick supporters of one candidate into giving their contact info to the other, and it appears Angle had every right to complain about that aspect of Reid's tactics.

Update: Several people have pointed out to me that the C&D letter includes some broad language about the Reid campaign's use of copyrighted material. That's true, but I think that in context, what Angle is really complaining about is the use of that copyrighted material to mislead her supporters into submitting their contact info to the wrong site.

Politico: IP Czar's report due this week

Reports Politico:

Industry sources tell POLITICO they expect White House Intellectual Property czar Victoria Espinel to drop her much-anticipated IP report this week. Her recommendations could reach the vice president’s office Tuesday and go public Wednesday, just in time for the Senate Judiciary Committee’s scheduled IP oversight hearing.

I believe the report in question is the "Joint Strategic Plan," mandated by Section 301 of the 2008 PRO-IP Act, and whose contents are described at Section 303. Earlier this year, Espinel's office sought public comments in anticipation of releasing the report.

Here's a link to the notice of the Senate Judiciary Committee's June 23 oversight hearing, which will feature testimony from Espinel, Warner Bros. CEO Barry Meyer; Paul E. Almeida, President, Department for Professional Employees at the AFL-CIO; David Hirschmann, President and CEO of the US Chamber of Commerce's Global Intellectual Property Center; and Caroline Bienstock, President and CEO of independent music publisher Carlin America.

It's official: Don Henley wins summary judgment over Chuck DeVore on copyright claims

It's been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley's copyright and Lanham Act claims regarding DeVore's videos that used Henley's songs to mock Boxer and President Obama, soundly rejecting DeVore's fair use defense. While I haven't done a line-by-line comparison of the tentative and final rulings, it appears that the one substantive change favored DeVore and his co-defendants. In the tentative ruling, Selna determined that the defendants had committed willful copyright infringement, but in the actual order, he declined to grant summary judgment in favor of either party on that issue.

I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution.
Order on Motion for Summary Judgment in Henley v. DeVore

'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.