Henley v. DeVore, No. 8:09-cv-00481-JVS-RNB (C.D. Cal. Jun. 10, 2010)
The U.S. District Court for the Central District of California issued a formal ruling on Musician Don Henley's copyright and Lanham Act claims against California Assemblyman Chuck DeVore. Rejecting DeVore's fair use defense, the court entered summary judgment in favor of Henley on all claims of copyright infringement. Henley’s false endorsement claim under the Lanham Act was dismissed. The court denied summary adjudication to both parties on the issue of whether the infringement was willful.
The court ruled that DeVore was not entitled to a fair use defense because his use of Henley’s work failed to meet the standards as established by Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). Specifically, the court held that DeVore’s use was more satirical than parodic, borrowed too heavily from the originals and had the potential effect of market substitution. In dismissing DeVore’s Lanham Act claim, the court cited the absence of authority for the theory that a performer could acquire a trademark in her or his own musical performance.
The Hollywood Reporter features a summary of an earlier tentative ruling. CrawDaddy! provides a detailed account of the events leading up to the dispute. BusinessWire gives a brief discussion of the ruling’s repercussions.
DeVore, a politician seeking Republican Senate nomination in California, as part of his political campaign, created and distributed two online music videos: “The Hope of November” (“November”) and “All She Wants To Do Is Tax” (“Tax”). The soundtracks for the videos were produced from instrumental versions of two song written by Henley, a renowned songwriter and recording artist. Justin Hart, one of DeVore’s campaign directors, supplied the vocals, using lyrics slightly modified from the original songs by DeVore. “November” poked fun at Obama, Nancy Pelosi, and Obama’s supporters. “Tax” mocked one of California’s Democratic Senators and criticized the Senator’s policies in general.
In deciding this case, the court looked at whether DeVore’s music videos were entitled to a fair use defense to copyright infringement. The court considered four factors in determining whether DeVore’s videos were fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used and (4) the risk of market substitution. See 17 U.S.C. § 107. The court also noted that DeVore’s videos were more likely to be fair use if they were parodies that directly lampooned Henley’s original work or Henley himself.
The court held that “Tax” was pure satire instead of parody because it failed to take aim at either Henley’s original work or Henley himself. The court further held that “Tax” improperly approximated “the entire melody, rhyme scheme, syntax, and a majority of the lyrics” of the original work. Therefore, the court deemed “Tax” not to be fair use.
The court then held that “November” was also not fair use. The court noted that the question of whether “November” constituted fair use was more debatable because Henley, who was an alleged supporter of Obama, was arguably a target of the movie’s ridicule. Nonetheless, the court found that any parodic element of “November” was too miniscule to justify the extent of borrowing.
Finally, the court dismissed Henley’s false endorsement claim under the Lanham Act for two reasons. First, the court held that the correct test for false endorsement is not whether the audience would mistakenly believe Henley endorsed or approved the videos, but whether the audience would reasonably think that Henley actually performed the music in the videos. The court concluded that customers were unlikely to confuse Henley’s voice with Hart’s unconvincing imitation. Second, the court was unwilling to extend trademark rights to cover a performer’s “signature performance” of his work due to the absence of precedent and the concern of disrupting commerce.
The ruling sheds new light on the extent to which people can permissively modify copyrighted work for the expression of political views and also reaffirms the reluctance of courts to extend the use of trademark protection to cover the performance of musical compositions.
Harry Zhou is a 2L at the Harvard Law School.