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.

http://www.variety.com/article/VR1118018548.html?categoryid=16&cs=1

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.

    Eric,

    As I sit in Australia listening to The Eagles, I devoured your recent post with a smirk, then a laugh, then a concerned thinking face, then a sigh and exhale. Nice work.

    Your comment about LA being sunny and surfy stuck with me. So I’m just gonna blurb out some thoughts if you don’t mind.

    I lived in LA via NY for 12 months last year. In the first 3 months I received 3 management offers, drove to 40 of my fans houses, did 7 performances, recorded 20 songs and signed a contract. All the while I had to move my car every 2 hours on the street to avoid getting parking tickets, got a job at Starbucks in Beverly Hills, had to pay to park my car in a parking garage every time I worked and before I knew I was wearing skinny jeans while my eyes were always peeled for celebrities so I could pitch myself to them.

    Meanwhile my mother is calling me from NY asking when I’m going to move back because she’s scared that there’s going to be a huge earthquake. Apparently California is overdue for a big one.

    Luckily, while my manager was spoon feeding me some nice ego stroking goodness… I fell in love with a girl trying to make her way as a model/contortionist. She had performed with Gwen Stafani, Van Halen and done some major commercials. I thought I was pretty hot stuff too. We were both broke and swimming alongside the other fishes in the sea of aspirations.

    See, being from NY, I was used to people tell me how it is. Giving me the straight jack, no playin’ around. It wasn’t until I moved to LA that I learned what it meant to be a flake. A well known character in LA – someone who say’s “yeah let’s meet. or yeah let’s do it.” Then they stop returning your phone calls and never show.

    I guess I went on that long diatribe because, yeah,it’s cool to be able to surf and do business from home in the same day. But when folks move to LA to pursue, they don’t surf… they grind. They soak in, size up, climb and seize… or they go home. New York is the same, it’s just a different flavor of ice cream and sweet in it’s own way. Maybe that’s why they say, “Live in NYC but leave before it makes you too hard. Live LA, but leave before it makes you soft.”

    Either way, we all love both.

    Your Reader,
    Rusty J

    p.s.
    thank you for changing my life with your recent book release.

    Nice Article,

    I wasn’t able to email it to friend it didn’t let me,what is image verification?

    Thanks for checking out the article– sorry it couldn’t forward. Not sure why that would be, nor do I have the faintest idea about image verification. I’ll see what I can find out. In the meantime, don’t hesitate to send a link, or you can find my blog as well at ericbeall.com.

    Really appreciate your support. Look forward to staying in touch.

    Best,

    Eric

    Wow– great stories. A model/contortionist ?!? The mind boggles. And you’re so right– what’s up with the parking thing in LA. I made four trips in a year to LA and got a parking ticket every time. When you look at the signs, they literally have four or five “qualifying” signs underneath them, allowing for parking from 2-5 on every other Thursday, no parking from 6-12 except on Saturday or Sunday, except between 11 and 11:15. It’s indecipherable. So you wind up valeting it, and spending about 1000 dollars in a week for a person to bring your car back and forth. It’s insane.

    Was interested to hear of your professional experience, because very honestly, it’s been mine as well. I’ve always found it very difficult to sort through the BS in LA and actually make something happen. I think I could live there quite comfortably (maybe as you say, too comfortably), but I don’t know if I could work there.

    Really appreciated your comments, and happy to hear the book has been helpful. Thanks for your support of the blog.

    Best,

    Eric

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