Just recently returned from a trip to California– the usual business schmooze in LA, a couple of days in Santa Monica, a venture up to Malibu and Topenga Canyon– and as always, I had to wonder why I battle the New York winters when the sun is always shining in the other music capital, and you get cultural advantages like better Mexican food and surfing. It’s a beautiful state, and seems like a pretty chill place to live.
However, political junkies will tell you that it is a state in total political meltdown (not that New York is much better), and not surprisingly, even the laid-back Californians are now starting to work up a little rage. So it’s only appropriate that the king of California rock, Don Henley, should find himself embroiled in a political battle, which actually has some interesting publishing issues at the heart of the matter.
It seems that a right-wing candidate for the California Senate seat, Republican Chuck DeVore, borrowed two classic Don Henley songs, “Boys of Summer” and “All She Wants To Do Is Dance”, altered some of the lyrics himself and had his campaign strategist re-record some of the vocals to make attack spots on his opposing candidates– he then put the ads up on the internet. I’m not sure which part of this is actually the most egregious: the fact that a politician is now thinking he can write song lyrics, that he thinks he is a comedian, or that he considers his campaign strategist qualified to replace vocals by Don Henley. First there’s an action hero that wants to be governor, now there’s a politician who thinks he’s a co-writer with the guy who wrote “Hotel California”.
Of course, none of those concerns are the primary ones for Don Henley, who has a reputation for a healthy temper, an unwillingness to suffer fools, and a staunchly liberal political point of view. Henley and his co-writers, Mike Campbell (“Boys of Summer”) and Danny Kortchmar (“All She Wants To Do Is Dance”) reacted quickly and have already sued DeVore for copyright infringement in the US District Court, on the basis that the new versions implied that they were supporting DeVore’s candidacy, a prospect that Henley probably found more upsetting than a Deadhead sticker on a Cadillac.
Those that follow this blog (I KNOW YOU’RE OUT THERE) will recall a similar situation around the McCain-Obama campaign, which I discussed in “Weapon of Choice” back in the politically-charged days of November 2008. The blog mentioned a number of song uses, including “Barracuda” (for Sarah Palin) and “Running On Empty”, which the McCain campaign (in one of the wackier campaign strategies ever devised) tried to use to ridicule Obama. Both of those uses were immediately attacked by the songwriters, who made clear that they had no interest in their songs being used for a candidate whom they did not support. While campaigns usually escape from such situations with little more than a pledge to cease and desist, the rumor is that Jackson Browne, a very politically active Democratic supporter, actually pursued the case and walked away with a six-figure settlement from the Republican Party.
So the Don Henley-DeVore case would seem to be something of a no-brainer, based on the precedent set by such a similar battle with Browne and McCain. But interestingly, in part because of the lyric re-writes, this fight actually could be considerably more substantial, as it raises the question of “fair use” for parodies, one of the trickier areas of copyright protection. In fact, much of the case comes down to whether the DeVore’s re-writes are “parodies” or “satire”, which under the law, are two different things.
Since the one thing that both liberals and conservatives seem to be able to agree on is the value of “free speech”, the copyright laws do provide for the “fair use” (that is, without the author’s permission) of well-known songs in parodies, which is defined as something that “at least in part, comments on the original author’s works”. On the other hand, the rights to “fair use” are diminished when the song is used as “satire”, which is when the use “has no critical bearing on the substance or style of the original composition”.
In other words, if the DeVore version of “Boys of Summer” pokes fun at Don Henley, the song itself, or the style of the songwriters involved, then it’s a “parody”. And if it’s “parody”, then it falls into the category of those things that you hear on the morning radio shows. However, if “All She Wants To Do Is Tax” is solely an effort to discredit a political opponent, and doesn’t actually comment on the original song or artist at all, then it’s “satire”. In that case, DeVore likely would need the permission of Henley, the co-writers, and their publishers in order to use the song.
Obviously, this is a pretty tough distinction to make, and in fact, even many of the “morning show” spoofs would probably fall more in the territory of satire than parody. But most songwriters and artists don’t care much about those uses, as they don’t imply the “endorsement” of someone antithetical to their own values. In the cases where the “parodies” are in truly bad taste (in the judgment of the original writers and publishers), there is some ability for publishers to argue that “fair use” does not apply in an instance where the parody is doing serious damage to the long-term value of the original copyright.
As you would expect, DeVore is arguing that he is indeed making fun of Henley, and his left-wing political leanings, by deciding to use his well-known hits for the political ad. He points out that there are millions of other songs and artists that he could have chosen for the “parody”, but that part of the humor is based on the use of songs by such a well-known supporter of Democratic candidates. Henley apparently doesn’t get the joke. As far as he’s concerned, DeVore has used the music to solicit campaign donations online, a use for which Henley assesses an approximate value of $1.2 million dollars (in endorsement and licensing fees).
Indeed, the first thing that occurred to me was that there is more than just the issue of “parody” versus “satire” here. There is also an unlicensed synchronization use. When he created a visual advertisement and put music to it, any music, DeVore was required to obtain a synchronization license, just as any advertiser would need. The “fair use” principle does not exempt the need for a proper license when it comes to putting music with a moving picture. Nor does the fact that the ad appeared only on the Web make it any less necessary to obtain the permission of the publishers involved. In fact, that kind of unauthorized use in venues like YouTube is one of the fundamental copyright violations that all of the major publishers and labels, not to mention film studios and everyone else involved in the entertainment world, have been fighting against. Given the importance of show business to the California economy, it’s not a great look for the aspiring senator to be using unlicensed material in his web-based advertising efforts.
Perhaps that’s the most important point. The scariest part of this seemingly endless effort by politicians to use music for their own political ends is that it points out, again and again, that the political community has very little understanding of the principles of music licensing and copyright protection, and not much good taste either. It’s no wonder we can’t make any headway on legislative issues related to file-sharing or performance royalties for artists, when a candidate for president can’t figure out that using “Running On Empty” without permission is a bad idea. Or when an aspiring senator, from the capital of the entertainment business, doesn’t recognize that re-writing Don Henley lyrics, even if you were a real songwriter, is somewhere on the level of painting a mustache on the Mona Lisa.
The case goes to court for hearing on June 1st, but the judge may or may not make a decision at that time. Needless to say, the challenge of distinguishing between “parody” and “satire” makes this a more complex issue than one might think. Neither Henley nor DeVore may get the quick decision for which they’re hoping. If the case winds up dragging on beyond next month, it’s worth noting that DeVore will already be costing California taxpayers money, and he hasn’t even been elected to office yet. Meanwhile, as Don himself said, “the lawyers dwell on small details”… Not sure if that’s parody, satire, or just plain old irony.