Neal's Notes

If you’re a legal/journalism junkie, you may have read that a federal court recently ruled that Chuck DeVore, a California senatorial candidate, infringed on former Eagles member Don Henley by using two songs in paid political advertisements.

The songs — “The Boys of Summer” and “All She Wants to Do Is Dance,” were reworked in political videos and titled, “The Hope of November” and “All She Wants to Do Is Tax.”

The court blocked their use, stating that since DeVore was not parodying Henley, there was no fair use.

Mike Masnick, in a recent techdirt posting, indicated that under current copyright law, parody is given more leeway under fair use; satire, in contrast, “involves using a work to comment on something other than the work itself.”

Kurt Ospahl, writing for the Electronic Frontier Foundation, postulated that from a First Amendment point of view, it’s a strange way to address political speech.

“For the court, the political purpose was a strike against fair use, because the court considered the videos to be a commercial use, seeking ‘publicity and campaign donations.’ In contrast, the Supreme Court has recognized that the First Amendment, ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”

Ospahl said that the court insisted that Devore prove that the videos would not harm the potential licensing market for Henley’s songs.

“Under that view, however, few satires will ever pass fair use muster,” added Ospahl. “That would inflict more harm on future creators than DeVore did on Henley’s works.  Satire is an art form that has enriched the political process since time immemorial. In the fourth century BC, Aristophanes, a comic playwright in ancient Athens, routinely skewered politicians and influenced the early democracy. Satire has continued to play a vital role in democracies through today.”

But Osprey said that he’s optimistic that courts have begun to better interpret fair use and that it 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,” he said.

Thoughts?