Read this before using copyrighted music in web videos

Mr. desmoinesdem alerted me to a recent court ruling in Don Henley’s copyright suit against Republican Chuck DeVore for two web videos DeVore made during his unsuccessful U.S. Senate campaign in California. Ben Sheffner has been covering the lawsuit at the Copyrights and Campaigns blog.

Henley sued over web videos that set new lyrics to two of his songs. DeVore changed “The Boys of Summer” to “The Hope of November” in a video that mocked Barack Obama, and he changed “All She Wants to Do Is Dance” to “All She Wants to Do Is Tax” in a video that mocked Senator Barbara Boxer.

DeVore claimed fair use on the grounds that the songs he put in his videos were parodies. The problem for DeVore was that legally, “a parody comments on the work itself; a satire uses the work to comment on something else.” DeVore wasn’t rewriting lyrics like Weird Al Yankovic used to do to make fun of musicians. He was scoring points against Obama and Boxer. If you haven’t paid for the rights to use a song, you have to meet a higher legal standard for satire than for parody.

You can download Judge James Selna’s ruling here. Excerpt:

Even assuming that “parody-of-the-author” is a legitimate transformative purpose, the Defendants’ songs do not satisfy the fair use analysis, as discussed below. “Tax” does not target Henley at all, and “November,” which only implicitly targets Henley, appropriates too much from “Summer” in relation to its slight jab at Henley and risks market substitution for “Summer” or its derivatives.

DeVore had claimed he was mocking Henley as part of the liberal Hollywood elite, but Henley argued in one legal brief that he has given money to some Republican candidates, including John McCain. (Who knew?)

Selna agreed with the plaintiffs’ claim that by using the Henley songs in their videos, DeVore’s campaign supplanted the market for derivatives of the Henley songs, because “licensees and advertisers do not like to use songs that are already associated with a particular product or cause. […] This injury is the very essence of market substitution.”

While Selna granted the plaintiffs summary judgment on the issue of copyright infringement, he did not issue a finding on whether the infringement was willful. (If so, Henley would have a stronger claim for monetary damages.) Sheffner comments, “I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution.”

Selna rejected the plaintiffs’ claim that DeVore violated the Lanham Act by giving people the wrong impression that Henley had endorsed DeVore’s Senate campaign. Sheffner explained in this post why he thought Henley would (and should) lose that portion of the lawsuit.

Other candidates and campaign staffers should review this case before they decide to use copyrighted songs in web ads.

LATE UPDATE: Writing for the Electronic Frontier Foundation blog, Kurt Opsahl doesn’t like this court ruling:

The [DeVore] videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?

The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use. “Parody,” in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman,” the Supreme Court found that the use was permitted. A “satire,” in contrast, involves using a work to comment on something other than the work itself.

Some courts have drawn the conclusion that “satires” are disfavored under the fair use doctrine. That’s the mistake the court made in Henley v. DeVore. […]

Satire is most effective when can draw from the well of society’s shared experiences, using common cultural references to leverage the commentary and reach a wider audience. It can take a known quantity, and add new meaning and message – classic characteristics of a fair use.

Fortunately, courts have increasingly begun to understand that fair use can and should apply to transformative satires. So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.

Click over to read the whole thing.

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Reality and satire convergence alert

“They’re Coming to Your Town,” a new DVD produced by the American Family Association, looks and sounds like a spoof created by The Onion. Click the link to watch the trailer and read the transcript. Here’s an excerpt:

It could happen to your town.

Man: They’ve come out of the closet.

AFA presents a look at how a handful of homosexual activists infiltrated the Eureka Springs, Arkansas government and changed the very moral fiber of the city. […]

Learn the strategies used by gay activists and don’t let this happen to your city. This DVD is a must-teaching tool – watch, and learn how to fight a well-organized gay agenda to take over the cities of America, one city at a time.

Man 3: If it hasn’t happened in your town, get ready, because it is going to happen.

Oh no! Gays are coming to my town to take over the government! Mr. desmoinesdem said this trailer reminded him of the anti-Communist films they made during the 1950s.

Speaking of satire, here’s a piece from the latest Onion: I’m Not One of Those ‘Love Thy Neighbor’ Christians. Excerpt:

My faith in the Lord is about the pure, simple values: raising children right, saying grace at the table, strictly forbidding those who are Methodists or Presbyterians from receiving communion because their beliefs are heresies, and curing homosexuals. That’s all. Just the core beliefs. You won’t see me going on some frothy-mouthed tirade about being a comfort to the downtrodden. […]

We’re not all “Jesus Freaks” who run around screaming about how everyone should “Judge not lest ye be judged,” whine “Blessed are the meek” all the time, or drone on and on about how we’re all equal in the eyes of God! Some of us are just trying to be good, honest folks who believe the unbaptized will roam the Earth for ages without the comfort of God’s love when Jesus Christ our Lord and Savior returns on Judgment Day to whisk the righteous off to heaven.

Now, granted, there are some Christians on the lunatic fringe who take their beliefs a little too far. Take my coworker Karen, for example. She’s way off the deep end when it comes to religion: going down to the homeless shelter to volunteer once a month, donating money to the poor, visiting elderly shut-ins with the Meals on Wheels program-you name it!

But believe me, we’re not all that way. The people in my church, for the most part, are perfectly ordinary Americans like you and me. They believe in the simple old-fashioned traditions-Christmas, Easter, the slow and deliberate takeover of more and more county school boards to get the political power necessary to ban evolution from textbooks statewide. That sort of thing.

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