Robert Dewald is a JD Candidate at Osgoode Hall Law School
The race for political office is competitive and fraught with risk where adversaries seek out support by advertising and creating political platforms to appeal to the majority of voters. As the cost of political campaigns mount, politicians on the campaign trail seek advantages whenever possible. Pop culture and entertainment has increasingly captured public interest, and it is no surprise that actors, actresses, music and other aspects of pop culture have been incorporated into political campaigns as effective advertising tools.
Music in particular has been utilized to draw attention from fans of the works of memorable artists. This can attract the ire of artists who neither endorsed nor allowed the use of their copyrighted music for political purposes. However, while legislation protects copyrighted works, fair-use exceptions for copyright infringement are granted in the U.S. when a parody is made of an artist’s work. It is this exception that some politicians have attempted to exploit when modifying music for political purposes. The U.S. District Court for the Central District of California decision in Henley v. DeVore is an example of the intersection between the copyright exception granted for a parody and the modification of a musical composition for political campaigns.
The defendant, Charles DeVore, is a California assemblyman who was seeking the Republican nomination for one of California’s U.S. Senate seats. To further his political campaign, DeVore revised the lyrics of “The Boys of Summer” and “All She Wants to Do Is Dance” which the plaintiff, Don Henley, had written. These modified versions of Henley’s songs poked fun at Barak Obama, Nancy Pelosi, Obama’s supporters, and the Democratic Party against whom DeVore was competing for a U.S. Senate seat. Subsequently Henley battled to have the modified songs removed from YouTube and later sued for direct, vicarious and contributory copyright infringement, as well as trademark infringement and false endorsement under the Lanham Act.
DeVore attempted to counter Henley’s claims by asserting that fair use applies because his versions of the Henley’s songs were parodies. Both parties moved for summary judgment. The Court ruled that DeVore’s fair use defence was inadequate, largely because his work resembled satire rather than parody. Despite the defendants' assertions that the modifications to Henley’s songs were to create themes of ‘nostalgia’ and ‘disillusionment’ to mock Henley and other Obama supporters, and criticise previous American foreign policy, the Court found that DeVore’s work was satirical in nature. The Court distinguished satire from parody as previously explained in Campbell v. Acuff-Rose Music, Inc., which states that the parodist is justified in using the copyrighted work because a parody’s effectiveness “necessarily springs from the recognizable allusion to its object through distorted imitation...the parodist has no alternative but to use the work.” In contrast the satirist who ridicules subjects unrelated to the work lacks the same claim to use of the work, which the satirist “merely uses to get attention or to avoid the drudgery in working up something fresh.”
In reaching its decision that DeVore’s modifications to Henley’s songs were not fair use, the Court conducted a four-factor analysis which considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Consideration of these factors influenced the Court to find that DeVore’s modification of Henley’s songs should not be considered fair use for the following reasons. First, the Court held that the defendant’s use of Henley’s songs was commercial in nature because DeVore stood to gain both publicity and campaign donations from their use of Henley’s music. Second, DeVore borrows from musical compositions that are highly expressive works, which are at the core of copyright law and deserve protection. Third, an extensive amount of content was borrowed from Henley’s compositions greatly weighing against the fair use defence. Lastly, the defendants were unable to show that their use did not harm the market for the plaintiff's work.
This decision clarifies the extent to which a copyrighted work may be utilized to form a political critique in the U.S., and may prove influential for similar Canadian cases. Politicians and others who wish to utilize copyrighted works for political critique must now rethink these strategies and seek out alternative methods to convey their message.