Can the Boys of Summer get copyright protection?

Don Henley is a political liberal. That is one of the reasons why he was not happy to wake up one morning to find conservative Californian senate candidate Chuck DeVore using his songs “All She Wants To Do Is Dance” and “The Boys Of Summer” as the basis for campaign commercials.  The campaign commercials were titled “All She Wants To Do Is Tax” and “The Hope Of November” and consisted of Mr Henley’s music combined with rewritten lyrics to criticise liberals in general and Barack Obama in particular. Henley decided to take legal action against Mr DeVore for copyright infringement.

So far, so good, but what was interesting about this case was Mr DeVore’s defence to copyright infringement.  He argued that his use was permissible under the US First Amendment because, as the use amounted to political speech, he was able to use Mr Henley’s songs under the US doctrine of fair use, which offers a limited right to use copyrighted material without the permission of the users for parody or satire purposes.

The US District Court judgement outlined the difference between parody (which is using part of the work to criticise the work itself or the author) and satire (which is using part of the work to make a criticism unconnected to the work itself). The difference can best be explained by this thought experiment: if you use a Midnight Oil song to criticise Peter Garrett’s political decisions, that is parody, but if you use it to criticise Julia Gillard or Tony Abbott that is satire. Under US law, parody is protected to a greater extent since the use of the copyrighted work is essential to the political point being made in parody, while it is not essential to the point being made in satire. 

The court then examined the lyrics of the infringing songs.  It found that “All She Wants to Do is Tax” was satire, as none of its political points had anything to do with the song itself or the author.  On the other hand it found that the lyrics to “The Hope of November” lampooned Don Henley’s support for Barack Obama and thus it was parody.  However, in both cases, the judge found that the amount of copyrighted material taken went far beyond the limited amount necessary to make the candidate’s political point (ie to conjure up Henley and hold him to ridicule).  As a result it was found that Devore’s use of Henley’s songs amounted to copyright infringement.
A copy of the decision is available here.

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