Singer/songwriter Don Henley is suing California State Assemblyman Charles DeVore in federal court for ripping off two of Henley’s biggest hits and using them in his campaign against Sen. Barbara Boxer for U.S. Senate.
The former Eagle claims DeVore, a Republican, wrote his own lyrics to the song, “The Boys of Summer,” criticizing President Barack Obama and promoting his own candidacy. DeVore posted a video of the rewritten song on YouTube, Facebook and other sites. He calls is an April’s Fools video” and calls Henley’s demands “liberal goon tactics.”
You Tube removed the video at Henley’s request. DeVore then reposted it. When Henley demanded it come down again, YouTube said they would. If Henley filed suit. So, here we are.
Henley also claims DeVore rewrote lyrics to another hit “All She Wants to Do Is Dance” which attacked Boxer.
Mike Campbell, who produced the songs, is also a plaintiff. DeVore’s internet strategist Justin Hart is also named in the suit. Henley and Campbell are asking for damages and permanent injunction against the posting of the videos.
DeVore intends to assert the First Amendment right to political free speech in parody as his defense, citing Campbell v. Acuff-Rose Music, Inc.
Campbell v. Acuff-Rose Music, Inc. is a U.S. Supreme Court case from 1994 which dealt with “fair use” of materials in parody. It was the 2 Live Crew case – “Campbell” in the case style is “Luther Campbell” of Me So Horny fame.
The Supreme Court ruled that 2 Live Crew’s parody remake of Roy Orbison’s classic song “Pretty Woman” constituted fair use under the law even though the group took much of the song untouched and used it for commercial purposes. The Court’s four factor fair use test: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and 4) effect of the use upon the potential market for or value of the copyrighted work.
The first factor is the primary consideration – whether the material has been used to help create something new, or merely copied verbatim into another work.
It will be interesting to see where the court comes down on this. The federal judges in California often make, shall we say, interesting decisions. And both DeVore and Henley are acting a little douche-y. DeVore because he’s obviously just doing all of this to poke at Henley. And Henley because he’d otherwise be the first ACLU member defending First Amendment rights.
