Henley v. DeVore

[Fan_For_Life]

Apparently this happened back in April. Didn't see where it was posted. Very short article.

Don Henley sues Republican over use of songs in campaign
http://www.cbc.ca/arts/music/story/2009/04/21/henley-republican-songs.html

[Prettymaid]

I suppose Don has someone who keeps an eye on youtube for these kinds of things. Surely he doesn't do it himself! And since he hates youtube I'm surprised he isn't quick to pull everything of his! :ack:

[sodascouts]

Yeah, I spotted this on Google alerts a while back but wasn't sure if I should post about it or not. However, it's become visible enough that it's no longer necessary, I think, to try and downplay it by not mentioning it.

Henley is notoriously quick to threaten legal action, but rarely sues.... rarely needs to, frankly. Most people back off because they don't want to risk a financially devastating lawsuit. His litigous tendencies are strange for a guy who sings so passionately a version of Shakespeare's line about killing all the lawyers, eh? But I am sure he believes all of his legal threats are driven by righteousness and thus perfectly appropriate.

Last I heard, the judge deciding the case (Selna) was in deliberations over whether or not she should dismiss the case, or at least certain aspects of the case which Devore's lawyers call "clutter," items which they claim obscure the heart of the issue.

The heart of the issue: Devore sang his criticism of Obama to a kareoke track of Boys of Summer, and his criticism of his political opponent Barbara Boxer to the tune of All She Wants to Do is Dance. These were videos used to express his political beliefs, allegedly in the hopes of attracting new voters. Devore argues that his actions were parody regardless of whether or not they forwarded his campaign, and therefore they are protected under free speech. Henley argues they are not legally protected parody in the sense that they do not parody him specifically, and therefore they violate copyright.

Also, because Devore conceivably garnered campaign contributions as a result of the videos, Henley argues that they can be classified as a commercial venture which negates any free speech claim. Devore says that because the videos do not overtly solicit donations, nor is it provable that any donations resulted from the videos, that they cannot be classified as such.

An additional complication is that one of the songs - All She Wants to Do Is Dance - is not copyrighted to Henley but rather to writer Danny Kortchmar. Henley argues the fact that it is not copyrighted to him is unimportant because it is so strongly associated with him. He uses a "false endorsement" law to cover that base rather than copyright law because he claims people will now believe he endorses Devore. Devore argues this claim is illegitimate since Henley's political leanings are well-known among the general public. He also argues that even if his views were not well-known, the public is accustomed to covers and parody and understands that they they do not imply endorsement from the person they are copyrighted to, much less associated with.

To defend himself against the copyright violation charges, Devore argues that the songs do indeed parody Henley implicitly by the very act of using those particular Henley songs. He claims they are mocking Henley's well-known liberal political orientation as evinced in the songs used. They say both Boys of Summer and All She Wants to Do Is Dance contain political statements and therefore using their tunes is legimate parody of Henley's personal political leanings as demonstrated by those statements, even though their lyrics do not specifically address the same policies Henley criticized but rather Obama's alleged broken promises and Boxer's alleged propensity towards raising taxes.

If anyone feels I have incorrectly summarized this, feel free to correct me. I have examined the documents closely but I am summarizing them from memory right now, which can always be tricky. ;)

The latest on the case:
http://www.dailypilot.com/articles/2009/06/29/topstory/dpt-devorevshenley.txt

For more detail, see copies of Devore's motion to dismiss "clutter" and Henley's response, respectively:

http://www.scribd.com/doc/15702449/DeVore-Motion-to-Dismiss

http://www.scribd.com/doc/16538606/Opposition-to-Motion-to-Dismiss-in-Henley-v-DeVore

[TimothyBFan]

Seriously, where is anyone putting stuff on YouTube really hurting any of these artists, unless I'm missing something.

I'm also with Soda, for a man that has a line in a song that simply says, "let's kill all the lawyers, kill them tonight", he sure seems to use enough of them, in the case of YouTube videos often against the people who love and respect him and his music the most.

It must be nice to be so rich and famous that you just think you can use your money and power this way. Doesn't Don have better use of his money? Does he not remember that a lot of this money is coming from the same people putting videos on YouTube? I know many of you won't agree with me, but it just seems he is always on a "power trip" about one thing or another and has a tendency of bullying people into doing it his way.

[EagleLady]

Well He is entitled to his opinion like it or not. He may come across as harsh, but I think he makes an excellent point.

[Prettymaid]

Seriously, where is anyone putting stuff on YouTube really hurting any of these artists, unless I'm missing something.


Well... I admit that I convert youtube audio and video and download it to my ipod for free, so for all of us who do that, those artists are not making any money.

ETA: I usually only do this if I cannot find it on Itunes!

[Miss Ghost]

The Devore lawsuit is not about him putting the videos on youtube, he doesn't sue all fans who put up videos, just has YouTube take them down.

[Miss Ghost]

Also no offense but you are unfair, Don has never sued a fan, Devore is not his fan so it's OK to sue him. He loves his fans, he would never sue them, He just doesn't like youtube videos.

[Prettymaid]

Miss Ghost, true to your name you seem to have appeared out of thin air! Welcome back!

[TimothyBFan]

Don't get me wrong you guys--I'm not picking only on Don here. I feel strongly about this issue also when people like Metallica are filing lawsuits and such to about illegal downloads. I would wager a bet that most people that are downloading like that are also paying MEGA amounts of money to see them in concert, buy t'shirts and usually cd's and albums even tho they are downloading also, etc...

As far as Don, I guess I am somewhat frustrated not only because of this but the whole sit/stand policy, the picture policy, etc... it just seems to go on and on. I have no clue how much money in the 34 years I've been a fan of the Eagles I have put out, and I'm sure it's nothing compared to what some others have spent and it probably is small change to any of the Eagles but these are the fans that have made you what you are today and it just seems that when you are taking down their videos etc... you might consider that you may be doing more harm than good when you are shutting them down, or putting flyers on chairs at concerts instructing them not to stand at a rock concert. I know I will seriously think twice about spending that kind of money again.

[TimothyBFan]

Also no offense but you are unfair, Don has never sued a fan, Devore is not his fan so it's OK to sue him. He loves his fans, he would never sue them, He just doesn't like youtube videos.

No offense taken, just carrying on a conversation here.

I do have a question for you tho. How do we know Devore is not a fan. I mean he obviously knows his music because he used it. Just wondering what your thoughts are.

[Fan_For_Life]

I guess I don't see where either of the songs are relevent to a political campaign.

As far as the use of sharing artists material in general, I understand the frustration of the artists for losing the money from the individual units that could be sold if it weren't for copying and sharing. And the artist if they own the material has the right to prohibit and if needed litigate against those who violate that prohibition. I don't make the kind of money musicians make but can understand the frustration of looking at my bank account and seeing more - signs then + signs. I know most artists have enough money to spend the rest of their lives on but it still takes away the profits they are entitled to as artists.

Then there's this side of me that thinks,,I know technology has hydroplaned copyright infringement but what about those who can't afford to purchase the music?

[Prettymaid]

I guess I don't see where either of the songs are relevent to a political campaign.


Apparently Devore had the words changed to All She Wants to Do is Tax.

[Fan_For_Life]

Apparently Devore had the words changed to All She Wants to Do is Tax.

Oh I did miss that.

I guess he doesn't want anyone getting the idea, and some would, that he is in support of this claim. I'm glad he's taking action. The use of the video in original format is one thing but to twist to suit the campaign is wrong.

McCain firing back at Jackson Brown says he didn't use it to gain profit,, but was used to gain public votes which to me in a political campaign is profit.

[Prettymaid]

I don't know, I suppose if I didn't like the politics of the person using my song I would try to stop it too.

[Freypower]

I think a very long bow was drawn by talking about Don's 'liberal politics' in Boys Of Summer. The only vaguely political comment in that song comes in the 'Deadhead sticker on a Cadillac' line. Don was once quoted as saying the Cadillac is a symbol of the political right. As a liberal myself I think it's somewhat ironic that in this case a conservative has to steal the ideas of a liberal instead of coming up with an idea of his own.

NB: I should state however that I'm not opposed per se to Don's 'liberal' opinions being parodied.

[AmarilloByMorning]

Though I am an independent who votes Republican and often disagree with Henley’s blind allegiance to the left, I consider him entirely justified in this endeavor. Speaking as an attorney, Henley could absolutely prevail on his claims; further, he only filed as a last resort (couldn’t help myself, sorry :cool:), subsequent to Devore’s brash remove-then-repost youtube tap dance. Speaking as a fan, under what degree of clueless would one have to operate before it seemed prudent to appropriate a lifelong liberal’s songs in support of a right-wing campaign?

[Prettymaid]

Welcome ABM and thanks for your comments. I hope you enjoy yourself here!

[sodascouts]

Welcome ABM!

I'm not sure Devore gave too much thought to grabbing Boys of Summer for his first parody. I have been reading Devore's interviews and even listening to the radio ones in an attempt to keep up with this matter. He has made several statements which I believe are somewhat damaging, or that at least render him less sympathetic even to a conservative.

He has said himself he got the idea while driving around and seeing an old faded bumper sticker for Obama leftover from the campaign on the back of a really nice car (the limousine liberal stereotype). It made him think of the line "Deadhead sticker on a Cadillac." He went from there. Thus, I don't believe he chose it deliberately because it is a Henley song, which strengthens Henley's claim in that regard. It is true, I suppose, that the fact that it was a Henley song might have been a nice "bonus." Almost everyone knows that Henley is a huge liberal.

I think the second parody, "All She Wants to Do Is Tax," was very deliberately chosen to be a slap in the face to Henley (it was done after the initial complaint), as Devore himself claimed. However, I think his claim that he was going to parody lots of Henley songs in so-called defiance of him was a smokescreen. Note that he has not done any more parodies, but instead only the one more. Why? I believe it is because Devore and his lawyers knew the lyrics and music were not copyrighted to Henley and therefore, by lumping it in with the Boys of Summer claim, Devore hopes to dilute the latter with the former. JMHO, but I think it was a mistake for Henley to let himself be manipulated into extending his lawsuit to include the second parody. His case is much stronger for the first.

It is true this lawsuit was a last resort. Henley asked YouTube to take Devore's video down. Devore challenged the removal. Once a removal has been challenged, YouTube's policy is that the offended party (in this case Henley) has ten days to file a lawsuit, or the video gets put back up. Henley filed the lawsuit in order to keep it down, but Devore states that Henley's lawyers then quietly approached Devore and offered to drop the lawsuit if he would agree not to repost the videos anywhere. Devore refused, calling it a "matter of principle."

I think it was matter of publicity. Devore is fighting an uphill battle for California senator and has nothing to lose except maybe some money (apparently he has enough so that the prospect of losing money doesn't concern him). Now, you and I know his name where we never would have before. He has accomplished that at least.

I'm no lawyer, but I think this lawsuit will boil down to whether or not the Boys of Summer spoof can be classified as legally protected parody. If it can be, then Henley's copyright is irrelevant under the special exception given to parody under free speech. If it can't be, then Devore is gonna have a lot of fines to pay. I think Henley has a chance to win here.

Regarding the spoof of All She Wants to Do Is Dance, I think Henley's claims are weaker and I do not think he will prevail there. Again, JMHO. The California courts are notoriously unpredictable. Many lawyers take a "throw everything at 'em and hope something will stick" approach, which unfortunately leads to a lot of frivolous lawsuits and suspect claims tossed in with legitimate ones. We'll see what happens.

Even if Devore loses this round, he has said he will appeal and take it all the way to the Supreme Court if he has to. I think Don Henley may find himself in lawbooks as a precedent setter, either as the loser or the winner, if Devore should go so far. Lawyers will cite "Henley v. Devore" as they do for Sinatra v. Goodyear Tire and Rubber, for instance. Interesting addition to his musical legacy, eh?

[sodascouts]

More on Henley v. Devore in the Daily Pilot (http://www.dailypilot.com/articles/2009/07/03/publicsafety/dpt-devorevshenley.txt)

[AmarilloByMorning]

Unfortunate that he had to file a lawsuit to make his point. If an artist so much as waved a finger at me for employing a portion of their song (which I would not do in the first place) I would give it a rest immediately.

As for myspace/fb/etc., I'm with him; hope he never caves on that opinion. And I don't care if someone positions me beneath the metaphorical or tangible sword of Damocles - I absolutely, positively refuse to "tweet."

[sodascouts]

Unfortunate that he had to file a lawsuit to make his point. If an artist so much as waved a finger at me for employing a portion of their song (which I would not do in the first place) I would give it a rest immediately.

Different people need to be handled different ways. A simple indication of displeasure would be enough for you, but not for everyone. Chuck DeVore has no love for Don Henley; indeed, he seems to hold him in contempt. DeVore was a relatively unknown politician outside of California. I doubt he will even now win this election. He has little to lose and arguably much to gain politically by making a lot of noise about this. So, in response to threats, DeVore became defensive and refused to back down. He can now style himself a representative of free speech fighting against what many perceive to be the excessive sense of entitlement prevalent in liberal Hollywood, which may appeal to some folks who otherwise might not have given him the time of day. Certainly at the very least it energizes his base.

By contrast, Henley is a wealthy and powerful man who soaks in the unconditional adoration of tens of thousands of people on a regular basis. As such, I think he is unused to the kind of response he got from DeVore. Like DeVore, he didn't want to back down. And so we have our lawsuit.

If I were Henley, I would have shrugged, rolled my eyes, and let the parody sink into obscurity. I imagine it would have done so fairly quickly. At this point, it's going to be hanging around for who knows how long - already it's been months - and as I said before, all we Eagles fans who keep up with the news on our favorite guys know who DeVore is now. I minored in political science in college and a basic rule is that the worst thing you can do is give an opponent free publicity.


As for myspace/fb/etc., I'm with him; hope he never caves on that opinion. And I don't care if someone positions me beneath the metaphorical or tangible sword of Damocles - I absolutely, positively refuse to "tweet."So said the last generation about using cell phones and trading their records for CDs....

[Brooke]

:lol: That's for sure. I was one of them! :rolleyes:

[sodascouts]

The latest on Henley v. Devore, from the Copyrights and Campaigns blog (http://copyrightsandcampaigns.blogspot.com/2009/07/setback-for-devore-as-court-refuses-to.html):

Setback for DeVore as Court Refuses to Dismiss Lanham Act and 17200 Claims in Don Henley's Suit Over 'Parody' Campaign Videos

Click link above for full article. Here is a snippet:


In his July 8 ruling, Judge James Selna rejected DeVore's argument that the Lanham Act only applies to commercial -- as opposed to political -- speech, relying heavily on the Ninth Circuit's decision in Committee for Idaho's High Desert Inc. v. Yost, 92 F.3d 814 (9th Cir. 1996) and the Second Circuit's in United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997). While acknowledging that the issue was "unclear," the court determined that Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005), which held that "the noncommercial use of a trademark as the domain name of a website ... does not constitute infringement under the Lanham Act," does not apply to false endorsement claims like Henley's. The court also held that the Supreme Court's Dastar decision, which warned against allowing Lanham Act claims to become a "species of mutant copyright law," does not bar Henley's claims because Dastar involved a "reverse passing off" theory not at issue here.

On the section 17200 claim, the court held that a "claim based on Henley’s persona or identity would not be preempted" by the Copyright Act. The court appears to be confused as to whether Henley is claiming copyright as to "All She Wants to Do Is Dance." I think it's fairly clear from the complaint that he is not. Henley (and co-plaintiff Mike Campbell) claim ownership in the composition for "Summer" (and infringement of that work), but the only claims in the complaint regarding "Dance" are by Henley only, for false endorsement/association. The order (and the motion it addressed) does not concern Henley and Campbell's copyright claims regarding "Summer." The entire case now goes forward.

-------------------------------

This is good for Don because the judge must think the case has some merit or it would be thrown out. Obviously he is not guaranteed a win by any means, but he's won the first battle.

A copy of the legal document refusing to dismiss the case or certain aspects of the case is here (http://www.scribd.com/doc/17258425/Dct-Case-Re-Copyright-Preemption-of-Tm-Claims), if you're so inclined to read it.

[sodascouts]

Here's the latest on the lawsuit:

From The Sacramento Bee (http://www.sacbee.com/static/weblogs/capitolalertlatest/024483.html):


Chuck DeVore Does Not Make Don Henley Want to Dance

Just to be clear, Eagles frontman Don Henley (http://topics.sacbee.com/Don+Henley/) does not support Assemblyman Chuck DeVore (http://topics.sacbee.com/Chuck+DeVore/), R-Irvine, in his bid to unseat Democratic Sen. Barbara Boxer. (http://topics.sacbee.com/Barbara+Boxer/)

Need evidence? Just check DeVore's revamped attack ad, "All She Wants to Do Is Tax," a spoof on the energy tax set to the signer/songwriter/Democratic donor's 1984 hit, "All She Wants To Do Is Dance."

A mere nine second into the ad, a disclaimer flashes across the screen: "Don Henley (http://topics.sacbee.com/Don+Henley/) not only didn't approve this message, he doesn't approve of Chuck DeVore or any of Chuck DeVore's message." And in the next shot: "The feeling is mutual."

The disclaimer was added in response to a lawsuit filed by Henley claiming that the tax video and a second riff on "The Boys of Summer," which rips on President Obama, violate the Lanham Act by suggesting that Henley endorses the Republican assemblyman. The singer's attorney and a Henley representative said they would not comment on the pending litigation.

The video, which led to an exchange (http://www.dailypilot.com/dailyblogger/panderson/?p=176) over the candidates' respective song- and novel-writing skills, was taken offline earlier this spring because of a second objection by Warner Chappell Music, which owns the rights to the song. But the music production and licensing company ultimately decided not to go forward with the suit, and the video was reposted, according to DeVore attorney Chris Arledge.I frankly find this article confusing. Does the Warner Chappell Music's decision to drop the lawsuit mean that Don's complaint is dropped as well? Or are the two separate? The "All She Wants to Do Is Tax" video IS back up on You Tube... but not DeVore's Boys of Summer video as far as I can see. Perhaps my earlier speculation that the part of the suit involving ASWTDID is weaker is correct, and Don is only pursuing the complaint about Boys of Summer now.

I'll be looking for more information.

Edited to Add: It appears that the Henley v. DeVore lawsuit is still on and not affected in any way by Warner Chappell's dropping of its lawsuit, which was indeed completely separate from Henley's complaint. Warner-Chappell apparently chose not to go forward with the lawsuit because DeVore had paid all the necessary licensing fees and they could not be sure of a win.

Meanwhile, Henley's complaint regarding DeVore's use of Boys of Summer and All She Wants to Do Is Dance is still moving forward.

You might ask, "If the 'All She Wants to Do Is Tax' video is back on YouTube, hasn't Don lost?" The answer is no.

While Henley only resorted to the lawsuit because DeVore did not take his videos down, his lawsuit is not centered around whether or not the videos are on the internet (although obviously if Henley wins, DeVore's Boys of Summer video will never again see the light of day). Even if Henley cannot prevent YouTube from allowing the upload of the video(s), he can penalize DeVore for making them in the first place.

In light of that, Henley hasn't given up on the All She Wants to Do Is Dance aspect because he still argues DeVore's use of the song violates the Lanham Act. In other words, the song's strong association with Henley misleads people into believing he supports DeVore.

You might ask, "If that's the case, why is the video back on YouTube?" It's because such an association cannot keep a video off of YouTube. Only a complaint by the copyright holder or the record company can. Since Henley isn't the copyright holder and Warner Chappell has decided not to pursue its complaint, DeVore's video is back up.

However, if Henley wins, the court could issue an injunction that would require DeVore to take down "All She Wants to Do Is Tax" as well. It might only be a temporary reprieve for the video.

[Troubadour]

Thanks for keeping us updated, Soda! I have to say, I find this whole thing quite amusing.


Chuck DeVore Does Not Make Don Henley Want to Dance

I'd love to know what would make Don Henley 'want to dance' :lol:

[sodascouts]

More information on the lawsuit:

http://copyrightsandcampaigns.blogspot.com/2009/08/devore-parody-of-all-she-wants-to-do-is.html

I have amended my earlier post now that I have a clearer understanding of the current state of Don's lawsuit regarding "All She Wants to Do Is Tax."

I posted a question on their blog about whether or not Don will be able to ask for the video's removal if he wins his lawsuit because I am still unclear on that.

ETA: He answered that if Henley wins, the court could issue an injunction forcing DeVore to take it down.

[AmarilloByMorning]

ETA: He answered that if Henley wins, the court could issue an injunction forcing DeVore to take it down.

Typically when filing copyrights of the Lanham Act, plaintiffs will request both specific and punitive damages, contingent upon the value of the property at issue. Specific damages request that the defendant do/refrain from doing a particular activity (People often sue neighbors for specific damages - you WILL pay to remove the tree you chopped that timber'ed right onto my porch! Or, in this case, you will remove the video and refrain from distributing it publicly in the future). Punitive damages are a legal method of slapping someone on the wrist without jail time and typically take the form of money. In this case, the plaintiff (Henley et al) will probably request that, if he wins, the defendant pay reasonable attorneys fees for both sides. Alternately, he might just want the video to be removed and not request punitive damages at all.

Where I practice, a plaintiff could request a temporary injunction immediately upon filing the lawsuit to prohibit the defendant from airing the video until the lawsuit has been settled. I'm surprised it hasn't been granted already, but they're in a different jurisdiction, so different rules/practices apply.

Sorry to soapbox... I'm an Intellectual Property major, and copyright is the bread and butter of my existence. :)

[sodascouts]

Punitive damages are a legal method of slapping someone on the wrist without jail time and typically take the form of money. In this case, the plaintiff (Henley et al) will probably request that, if he wins, the defendant pay reasonable attorneys fees for both sides. Alternately, he might just want the video to be removed and not request punitive damages at all.

I got the impression Henley & Campbell were asking for tens of thousands of dollars, but I guess these things usually get talked down. Or did I misread the complaint?


Sorry to soapbox... I'm an Intellectual Property major, and copyright is the bread and butter of my existence. :)Thanks for your expert opinion. It's appreciated!

I also have another question that I'd like your opinion on:

Would the refusal of Kortchmar (the copyright holder of the original song) to sue for copyright infringement affect whether or not the "All She Wants to Do Is Tax" video can permanently be taken down if Henley wins?

Or is it irrelevant what the copyright holder's wishes are in this case?

If that's the case and Henley wins, it seems to me he will be setting a precedent on the use of the Lanham act which was not its original intent, from what I understand after researching it.

If he wins, from now on, the Lanham Act could arguably be used to give priority to those strongly associated with a piece of intellectual property like a song (which begs the question - how do we define "strongly") over the actual copyright holder, provided the copyright holder is not as well known to the general public.

Is my logic sound here, or am I misunderstanding?

If it's true that a copyright holder's rights in matters like these could be co-opted by someone else simply because they can claim a "strong" association, it seems to me to be a bit disturbing...

A well-known artist could claim he has the right to completely control every aspect of every song he has appeared on regardless of who holds its copyright and without consulting their wishes, every photo he has ever appeared in regardless of who holds its copyright and without consulting their wishes, every video he has ever appeared in without consulting the wishes of whoever holds the distribution rights... the list goes on and on.

And what happens when he's appeared on the song, photo or video with someone else who can claim a "strong" association - sung a duet, for instance? Do we have to do some kind of survey to determine who has the stronger association? How much of a difference in "strong association" is acceptable for one party to prevail? It is obvious Korchtmar is less known than Henley, but what if the case were something involving both Henley and Frey, for example? Henley and Stevie Nicks? If DeVore were to razz on Obama using Leather and Lace, would Henley be able to demand its removal even if Stevie Nicks (copyright holder) didn't care?

This precedent would be HIGHLY problematic, it seems to me, unless I am misunderstanding. I can only imagine the number of ensuing lawsuits!

I wonder if Henley has really thought this through, as a copyright holder himself. What if the Ataris were to claim stronger association with Boys of Summer in the minds of the public (at least the younger crowd) and thus argue they had the right to control how it is used?

I don't think he would like that too much.

But I speculate that Henley hasn't thought it through. I bet it went down like this:
Henley: I want "All She Wants to Do Is Tax" taken down.

Henley's lawyers: We think we can use the Lanham Act to do it.

Henley: Fine, whatever. Just get it taken down for good.

[AmarilloByMorning]

I got the impression Henley & Campbell were asking for tens of thousands of dollars, but I guess these things usually get talked down. Or did I misread the complaint?
I actually have not read the official complaint, only the press releases. Typically a massive amount of money is required to capture someone's attention and convey the necessity of action; otherwise, the defendant would simply pay the fine to get everybody off his chest, cease the behavior for a while, and then go right back to what he was doing initially. A great example of this is speeding - it's technically a mini-lawsuit, but people just pay the requested fee (ticket) and, voila, resume their speeding.


Thanks for your expert opinion. It's appreciated!
"Expert" - oh, to earn that accolade! But I adore legal issues, even outside of my realm of knowledge, so: anytime! Glad to be of service.


Would the refusal of Korchmar (the copyright holder of the original song) to sue for copyright infringement affect whether or not the "All She Wants to Do Is Tax" video can permanently be taken down if Henley wins?

All someone needs to file a lawsuit is standing, which is a material interest in the issue at hand. Here, Henley clearly has interest - immaterially, his voice is on the song, it's associated with him in the public mind, so it's his reputation and "good will" (business reputation or standing in the music industry) being affected. Plus, he has a financial interest in the money derived from the song's airplay because he's the recording artist, so the way the public perceives the song affects him both in terms of his reputation and in terms of his ability to derive income from his chosen profession of making music. Korchmar could vociferously object, and Henley would be able to proceed with his lawsuit regardless. I'm struggling to even come up with a hypothetical situation in which Korchmar could prevent Henley from filing the suit, unless he says "I refuse to give you any more songs unless you drop this," but that scenario would be dealt with personally, absent the court's involvement.

So, no. Henley can have it removed. Korchmar could, though, sell the song to someone else, and allow a parody to be made of that version. Then Henley would have to file a lawsuit against both Korchmar and DeVore arguing that the parody "tax" song was materially affecting his reputation.


Or is it irrelevant what the copyright holder's wishes are in this case?
Ding! This is a great example of: "Enjoy your copyright; it's basically all you have." When you write a song and give it away, you're metaphysically giving them power. Henley will be associated with "Dance" forever, so he will always have the ability to object to derivative works created with it (fan tributes on youtube, etc.). It would be a significantly different scenario with a song like "Both Sides, Now" which has been covered by several different artists. If someone created a parody of that song, it would really be up to Joni Mitchell to file an objection, because so many people have covered it that, when a member of the public thinks of the song, they generally think of her. But with "Woodstock," the issue would be right back to the way it stands with "Dance" - either Mitchell OR CSNY could object, because both are closely associated with the song in the public's mind. I hope that wasn't too circular.


If he wins, from now on, the Lanham Act could arguably be used to give priority to those strongly associated with a piece of intellectual property like a song (which begs the question - how do we define "strongly") over the actual copyright holder, provided the copyright holder is not as well known to the general public.

Is my logic sound here, or am I misunderstanding?
Your logic is sound, and unfortunately correct. The Lanham Act was created specifically to protect the way a property is perceived by the public (a product's "reputation," if you will), so the person most closely associated with a particular item will typically prevail. It's often discussed in conjunction with a rather nebulous concept called "secondary meaning" - when something that would not normally be trademarkable becomes so entrenched in the public's mind that the USPTO will grant a trademark to protect their rights. If a company called Blue Ribbon tried to get a trademark to sell horse cookies, the USPTO would not grant the patent, because anything related to horses could be associated with blue ribbons. The USPTO would consider it "generic" and deny the application, because granting it would deplete the public domain. (Imagine if kids made horse cookies to sell at a horse show and couldn't call them Blue Ribbon cookies for fear of having a lawsuit slapped on them. The court would have "depleted the public domain" by limiting peoples' ability to freely act in a particular way - sell cookies called "blue ribbon.") However, if a brand new company sold Blue Ribbon cookies without a trademark and they were so absolutely fantastic that they started a Beanie Babies-type frenzy, the USPTO would reconsider and grant the trademark, because the Blue Ribbon mark would have acquried "secondary meaning" in the consumer's minds. They would allow the company to sell Blue Ribbon horse cookies, but probably not anything else (saddles, etc.). To, uh, arrive at my point forty years after departing... Henley can argue that "Dance" has formed an association with him by employing the same reasoning.


If it's true that a copyright holder's rights in matters like these could be co-opted by someone else simply because they can claim a "strong" association, it seems to me to be a bit disturbing...
It is. I wish I had a better response for you, but the closest person to a fire has the best chance of winning on a claim that he got burnt. The list does go on and on, and where to draw the line is an issue with which the Supreme Court is continually contending.


If DeVore were to razz on Obama using Leather and Lace, would Henley be able to demand its removal even if Stevie Nicks (copyright holder) didn't care?
He would be able to file the case, because his voice is on the song and he would thus have standing, but in this instance I doubt he would achieve his objective. The court would consider a number of factors - in this case, the song was written solely by Nicks, and appeared on her album, so it's primarily associated with her; plus, looking objectively at the vocals, she has the lion's share of the song- she sings first, and has a bit more lyrics. Henley would probably lose this one if he filed without Nicks' support.


What if the Ataris were to claim stronger association with Boys of Summer in the minds of the public (at least the younger crowd) and thus argue they had the right to control how it is used?
That would be EXTREMELY disturbing, but (a) the song was a significantly bigger hit for Henley, and (b) when the Ataris released the song, almost every review mentioned it as a cover of the Don Henley song, so he could argue he has an inextricable link with "Summer" in the public's mind. The Ataris would lose spectacularly. But, if someone covered, say, "Long Way Home" or something else that he never pushed as a single and it became a massive #1 anthem, he might lose his standing to the cover artist. And I imagine he would not back down quietly.


But I speculate that Henley hasn't thought it through. I bet it went down like this:
Henley: I want "All She Wants to Do Is Tax" taken down.
Henley's lawyers: We think we can use the Lanham Act to do it.
Henley: Fine, whatever. Just get it taken down for good.

I suspect you are correct in that regard. The Lanham Act is kind of a catch-all for public figures. Want to win your case quickly? Argue that it's hurting your reputation and good will! Lanham to the rescue!

On the one hand, I enjoy the Lanham Act because it allows the Disney company to keep Mickey Mouse out of pornos. On the other hand, it's turning into a balloon mortgage - swelling beyond anyone's ability to control it. With all the serious personal freedom infringements the courts are facing of late (Patriot Act, anyone? And I bring that up as someone who votes to the right) they're sweeping more and more Lanham suits through. Unfortunately, I cannot devise an adequate remedy; nor, it seems, can anyone, even in the face of a continually-compounding problem.

:p Woo-hoo, that was fun! Hope I assisted in clarifying, rather than compounding any confusion.... Made me think of my very first court appearance, using the Lanham Act to defend the trade dress of a Mexican restaurant. Trembled the entire time.

[sodascouts]

Very interesting! There has been some attempts to control the breadth of the Lanham Act, like Dastar Corp. v. Twentieth Century FoxFilm Corp in 2003. I think if it gets to the point of ridiculousness, like in the scenarios we discussed (luckily it's not quite that bad yet), we'll see more verdicts limiting it. When it would really get interesting is if two people equally associated with a piece of intellectual property want to do different things with it - one wants to allow a satire, one doesn't, both feel strongly.... could get ugly! lol

But that's what the lawyers are for - to hammer out stuff like this, right? It's why the law is so mutable - when one act starts getting out of control, new laws come along to limit it. In the legal field, one can never really say "this law means that" because another lawyer will argue it doesn't! And each will pull out precedents... I guess it's all about which lawyer argues the best and the mood of the judge rather than which is truly in the right, eh? Depressing thought. Thank goodness for honorable lawyers, though! :)

We say we know the Ataris would lose the example case, but how many times has a verdict been pronounced that made everyone's jaw drop? You hear about some cases that just make you cringe - The burglar who sued a homeowner for hurting him in the midst of the robbery, and won - and the homeowner went to freaking prison. The murderer whose lawyers were able to figure out a way to get him acquitted by a defense that amounts to "gay panic" (I know the defendant's lawyer would not characterize it as such, but the result is the same - murderer acquitted with a defense that seems ridiculous. I'm thinking of the Joseph Biedermann case). Obviously the jury comes into play in these cases but my point is that the court is unpredictable and anyone who thinks they have it in the bag better not get too cocky. I guess that's why there's appeal, though.... and why so many choose to settle.

Again, thanks! But I have to admit the thought of the Dixie Chicks, who had a bigger hit with Landslide than Fleetwood Mac, could argue that they could control Stevie Nicks' work regardless of her wishes makes me hoppin' mad!!

[sodascouts]

Well, Chuck DeVore's piped up again! He's posted an "update" on the case on the Big Hollywood blog (http://bighollywood.breitbart.com/cdevore/2010/04/05/henley-lawsuit-update/).

[Freypower]

So he justifies stealing Henley's work by saying that 'Free speech using a culturally-savvy delivery is far too powerful to leave as the sole province of the Left'.

Perhaps if conservatives came up with some positives instead of the endless negativity and hatred of The Left their message might resound with more of the people they wish to reach. (This is MY OPINION only).

As for 'liberals been liberals since I don't know when' - yes, and actually, some of us are proud of it. There's that pejorative use of the word 'leftist'. You can almost hear it being spat out.

Also, I have never seen any interview where Henley ardently supported Obama. In fact, in the Rolling Stone cover story he went ouf of his way to praise Clinton & McCain. I was under the impression he supported Clinton.

Does it occur to him that perhaps Henley only wants to protect his intellectual property?

I don't like posting this sort of stuff, but I'm afraid I felt that I had to in this case.

[sodascouts]

Perhaps if conservatives came up with some positives instead of the endless negativity and hatred of The LeftTalk about negativity... What an unfair hyperbolic generalization.

That kind of vilifying rhetoric and the divisiveness it feeds are what keep this country from progressing.

Just my opinion.

[Freypower]

Soda, I very rarely comment on politics on this board. From where I am all l am seeing is the Republicans and the Tea Party people who say NO to everything and are 'anti' everything to do with government spending. My point is that if they wish to defeat the Democrats they have to come up with some alternatives. Instead all they appear to be doing is demonising Obama and the Democrats. If we've been given a distorted impression of this by our media I can only apologise.

[sodascouts]

When a Republican president was in the White House, the Dems were the obstructionists. Now it's the other way around. All these politicians care about is power. If an idea comes out of your party leader's mouth, it's golden. The same idea comes out of the mouth of the other party leader, it's horrible. Sadly most people don't recognize the BS because they're too busy straight-ticket voting and parroting the talking points of their party.

Very frustrating. No wonder so little gets done in the United States government - progress requires cooperation. When the Dems control the presidency and both houses of Congress and still nothing gets done, you have to ask, why? It's because there has to be cooperation. NEITHER party seems to be willing to do that in any meaningful way, and so the U.S. government is crippled no matter who's in the White House.

[pueblo47]

Ever heard the term "yellow dog Democrat"? Very common here in the south where the die-hard voters say they would vote for a yellow dog if it was a Democrat. And they ain't kidding.

[Freypower]

Soda, as usual you make a valid point. You sound like my husband: 'all they care about is power'.

Sorry to go off topic. As I said I really try to avoid talking politics here.

[sodascouts]

Well, I jumped off topic with you, lol.

I've just become very disillusioned. I used to be such a hardcore Republican, but now I have no party affiliation because I feel the GOP is full of selfish hypocrites. The Democrats are just as bad. All they care about is staying in office and pleasing the people who fund their campaigns. Maybe I'm being too cynical but that's what it seems like to me. I didn't even vote in the last election because I didn't care who won. They're all the same. So far, Obama's administration bears me out. There has been very little substantive change, and it's all because of the petty power plays by politicians on both sides of the aisle.

[TimothyBFan]

I always vote--sometimes Republican, sometimes Democratic and I never vote straight ticket-I vote who I think could possibly help us out. So far, my strategy hasn't worked. :-( I said last election, "I will vote for the lesser of the evils", & it saddens me to have to look at it that way.

Soda-you were spot on---They want the power and will say and do whatever it takes to get the votes and then when they get into that office it seems as if nothing ever comes of what was said. Your line, "I've just become very disillusioned.", says it all and I think millions of others feel the same way and that saddens me very much.

As far as the suit, I guess I can see both sides of this. Maybe Mr. DeVore is in the wrong by using someone else's song to further his political career but I also have to add that I am sick & tired of hearing about Mr. Henley suing anyone and everyone whenever they do things that don't go along with his beliefs. It must be nice to have enough $$ and lawyers at your disposal to do this.

Just a thought, I wonder if Don has ever had a thought of running for political office. He really should. JMO

[Ive always been a dreamer]

Well, I always try to avoid all discussions about religion and politics here because I think they inevitably turn out to be "no win" topics.

However, I am going to say a word to defend Don. I can definitely put myself in his shoes here. An artist's work is a very personal thing to them. I can totally understand why they would not want someone using their creation to further causes that they do not believe in. To try to draw an analogy a little bit closer to home - what if someone made a porn parody of this message board and posted it on YouTube. I'm guessing we would all be pretty upset, especially Soda since she created and owns the site.

[TimothyBFan]

To try to draw an analogy a little bit closer to home - what if someone made a porn parody of this message board and posted it on YouTube. I'm guessing we would all be pretty upset, especially Soda since she created and owns the site.

Where do I sign up to see it? :thumbsup: (quit snickering at me--you knew as soon as you typed it, that I would jump all over it!)


I can totally understand why they would not want someone using their creation to further causes that they do not believe in.

You make a very valid point. But I have to ask, if this DeVore had been a democrat and had a lot of the same beliefs that Don has, would Don have been so quick to file a lawsuit do you think?

[pueblo47]

Where do I sign up to see it? :thumbsup: (quit snickering at me--you knew as soon as you typed it, that I would jump all over it!)



You make a very valid point. But I have to ask, if this DeVore had been a democrat and had a lot of the same beliefs that Don has, would Don have been so quick to file a lawsuit do you think?

No, just MY opinion

[bernie's bender]

You make a very valid point. But I have to ask, if this DeVore had been a democrat and had a lot of the same beliefs that Don has, would Don have been so quick to file a lawsuit do you think?

Don doesn't dig republicans.

if it had been a democratic candidate or cause, he probably would have re recorded it!

The 'theme song' thing got really big during the Reagan run when he took Springsteen's "Born in the USA" and twisted it to fit his needs (even though the lyrics were completely counter to Reagan's positions.) Lots of people assumed that it meant that Springsteen supported Reagan (which he actually opposed Reagan) and the lesson learned was that an oft told lie can become truth.

To that end, several republican campaigns have been asked not to appropriate songs because the artists were not in support of the candidate. Sometimes it is successfu, sometimes not.

What I find puzzling is why the republican campaigns would want to be associated with songs and artists who clearly do not like them nor support their positions? Weird!

The Devore argument that it was parody or 'fun' to poke Henley in the eye by taking his and Campbell's song knowing that they disagreed with the republicans and doing the song would add insult to injury is kind of twisted and mean spirited... But, I know that folks often get sucked into the 'whatever it takes to win' thing....

It is a big ol mean world full of ruthless people... I don't know whether art can be controlled once it is out... but, I don't guess I'd be of a mind to take someone's work that was clearly not intended for my cause and twist it to fit.....

Why not get a nice song from a republican artist... why not use "Wang Dang sweet poontang" from Ted Nugent and rework the lyrics for a republican cause?

[sodascouts]

Dreamer's analogy reminds me... It's a staple of porn to rip off plots and titles from other movies, with an X-rated twist. You know, something like calling a movie "Forrest Hump" and making it about a mentally challenged guy who dresses and talks like Forrest Gump accidentally stumbling into a brothel. I wonder if anybody ever sues over that - I'm sure writers can't all be happy about their creations being used in such a sordid way, but since it happens all the time, presumably it's legal...

[bernie's bender]

Dreamer's analogy reminds me... It's a staple of porn to rip off plots and titles from other movies, with an X-rated twist. You know, something like calling a movie "Forrest Hump" and making it about a mentally challenged guy who dresses and talks like Forrest Gump accidentally stumbling into a brothel. I wonder if anybody ever sues over that - I'm sure writers can't all be happy about their creations being used in such a sordid way, but since it happens all the time, presumably it's legal...

Oh gosh, I'm not sure I'm ready to compare republicans to pornographers... I think the legal part of it has to do with 'deep pockets'.... suing someone who is also usually one step ahead of the law would be a waste of time and money... the pornographers tend to not be remotely interested in right and wrong... they are solely interested in making money on the fringe.

The difference here is pretty stark... one venture is for 'entertainment' and 'pleasure' (self pleasure?) and the other is for ruling the most powerful nation on the planet.

I remember my brother saying (when we were in our teens) to my grandmother "Grandma, I checked and it is LEGAL!" and she muttered, returning to the stove, "Well, it may be legal, but that doesn't make it right."

[Ive always been a dreamer]

I remember my brother saying (when we were in our teens) to my grandmother "Grandma, I checked and it is LEGAL!" and she muttered, returning to the stove, "Well, it may be legal, but that doesn't make it right."

That is exactly my point, bender. It's a matter of doing the right thing. To me, I don't know why someone in a position of notoriety would want to use someone's intellectual property when they know the individual does not approve. But, that's just me. My Mom used to explain it to me this way "Just because you can doesn't mean you should."

[bernie's bender]

yup. we agree.

[sodascouts]

I'm also of the opinion that one should do the right thing regardless of whether or not one is legally compelled to do so. In fact, I once told a lawyer that. lol

Here's the thing though... DeVore obviously doesn't believe he's doing anything wrong. So the whole "legal vs. right" issue doesn't exist for him. He believes what he is doing is BOTH legal AND right.

[Nobody'sBeach]

If Mr.DeVore has chosen a different song by another artist who probably would have let it go, people would not still be talking about it a year or so later and he would have been out all that publicity. Seems to me that his actions were an intentional act to keep his name in the papers (and in the discussions), regardless of whom he drags along with him. It’s just blatant self-promotion (i.e., politics as usual).

[Ive always been a dreamer]

Agreed, NB.


Here's the thing though... DeVore obviously doesn't believe he's doing anything wrong. So the whole "legal vs. right" issue doesn't exist for him. He believes what he is doing is BOTH legal AND right.

Well Soda – I agree with you that DeVore thinks he is right here. But, to me, that’s the whole problem. As I said, the way I was brought up is that it is wrong to “borrow” something from someone without their permission. To me, it’s simply a matter here that DeVore knows that Henley disapproves of him using the material. So why doesn’t he just respect that the same way Joe Walsh (the candidate) did and find something else to use. Sorry, but I just don’t blame this one on Henley. Regardless of who is legally right, I just don’t think DeVore is ‘playing nice’. JMHO

[sodascouts]

I understand why Henley took action against DeVore, but I think it was a mistake. Now a video which would have quickly slid into obscurity is a campaign talking point that has garnered DeVore nationwide coverage. DeVore gets to play the victim while Henley gets headlines like this:

TMZ: "Don Henley - All He Wants to Do Is Sue" (http://www.tmz.com/2009/04/18/eagles-frontman-all-he-wants-to-do-is-sue/)

Oh well. Hope it's worth it.

[bernie's bender]

DeVore obviously doesn't believe he's doing anything wrong.

That is not the conclusion I came to at all. I know guys like DeVore. He is 'working it'... if the shoe were on the other foot, he'd be screaming bloody murder....

there is no good in people like him... if Henley can be a hardass and a jerk sometimes, at least he has talent and he actually attempts to be singular in his approach.

As for the wise thing to do for Henley to 'let it go'... sorry, I cannot in good conscience blame the victim. Tactically, I'm certain that Henley will trade a TMZ article for making sure that people know he does not support republicans and scoundrels who work for them like Devore....

Besides, I think the publicity works for Henley.

[pueblo47]

No such thing as "bad" publicity. Anything that keeps your name in the news is the desired effect. This applies to both men. I'm watching this lawsuit with great interest.

[sodascouts]

there is no good in people like him...

He arguably misused two Henley songs. I reserve the "pure evil" label for people who do more than allegedly violate copyright, but hey, that's just me.


Tactically, I'm certain that Henley will trade a TMZ article for making sure that people know he does not support republicans and scoundrels who work for them like Devore.....Yeah, 'cause if it weren't for this lawsuit, everyone would totally think Henley was a Republican, right?

:lol:

[bernie's bender]

Yeah, 'cause if it weren't for this lawsuit, everyone would totally think Henley was a Republican, right?


it was what lots and lots and lots of people thought about Bruce Springsteen and he said he regretted not fighting harder to stop it.

also 'no good in him' ≠ evil, your words, not mine. (kinda hyperbolic, too, no?)

I think when we just ignore or shrug off folks who victimize other people, we encourage that behavior and give tacit approval. This guy should be denounced by his own and brought into to line with what they represent and believe in...


I had an incident the other day at the Dept of Motor Vehicles (I'm restoring an old pickup truck with my son and was applying to keep the old 1960's plates) anyway, I had to wait a couple of hours and during the wait a guy got really angry (he had some pretty major paperwork problems it sounded like) anyway, he starts yelling at the ladies behind the counter (a small DMV all staffed by women, at least when I was there.) and as his rage grows he turns it into some kind of political thing about the state, the government just totally nutty... Anyway, his language got ugly and he made some slurs at the women who were working there... I'd had enough of them hassling the ladies and just being a jerk.

I'm a fairly large and imposing person (with a nice smile though!) I got up and headed for him and said firmly and calmly, "That is enough. It is time for you to go." he glared at me and I continued, "If you do not leave, I will call the police and I promise you, you will not enjoy the experience."

Like most bullies he grabbed his stuff and left.. but when he got in the parking lot we could hear him yelling that he was coming back and he was going to 'get me' and all that. I went to the door and he actually ran to his car and sped off. I noticed that an old gentleman was right behind me.

When I re-entered, the old guy introduced himself... he'd been sheriff in our county until about 10 years ago... he told me that when we don't go straight at this nonsense these folks start feeling like they have the right to be ugly...

The ladies said, "Would anyone object if this man goes next? (pointing to me) and I said, "hey, I can wait, I'm only 4 numbers away" and everyone laughed...

When I say that the guy has 'no good in him' I mean that he is willing to put his needs ahead of everyone else's. I think that is the core problem everywhere. We need to be community minded and accept some risk and accept that things aren't always going to go our way and actually be glad about it....

When causes I support have someone who do something that I see as reprehensible, I at least make sure that they know how unhappy I am with the behavior. It is true that Don Henley has deep pockets and has probably done his share of 'wrong things' but, I would want this guy to make sure that if he was representing my party of choice that he know that I did not support his efforts and that his efforts actually harm the cause.

I realize that for some folks, the ends do justify the means... I have learned in adulthood that doing bad to do good never ever works.

[Prettymaid]

A key part of this effort to harness non-traditional modes of political speech began 13 months ago when, while campaigning in the Bakersfield area, I saw a fading Obama bumper sticker on a Prius. Instantly, the line, “Out on the road today I saw a Deadhead sticker on a Cadillac, a little voice inside my head said: don’t look back, you can never look back,” from the Don Henley song “The Boys of Summer” popped into my head.

- Chuck DeVore


Hey, at least the guys got good taste in music, heh? If he was able to pull those lyrics up immediately in his head he's obviously a fan of the song!

So should DeVore have used a song by someone who obviously has a complete polar political view, or should Henley let sleeping dogs lie?

In this case I think that the act shouldn't have been committed in the first place. Legal or not, Devore should pick a song by someone who shares his political views and save a lot of time and money.

[sodascouts]

It does seem rather petty to take digs at Don for his liberal views by choosing his songs to parody; of course, here on The Border, we all tend to be protective of Don and bristle when something like this happens to him. Still, we have to recognize that part of the nature of parody is to mock the originator of the work, which is a well-established practice used by people of all stripes for hundreds of years.

Parody gets special protection that other works do not (because, as implied above, very few targets actually enjoy being parodied and thus the parody genre would shrivel up and die if permission were required). Whether or not we (or Don) approve of the use of parody as a political tactic is irrelevant. It is protected by the United States courts.

However, I do keep in mind that whether or not these videos are parodies is still being contested. If Don's lawyers can convince the court the videos don't come under the purview of legally protected parody, then DeVore will almost certainly lose.

In my personal opinion, one should only sue if the other person truly is violating the law, not to forward a personal agenda against someone you dislike/disagree with/want revenge upon. Indeed, I feel that's an abuse of our court system.

Hopefully Don is not doing this just to punish DeVore for defying him or to show his disapproval of DeVore's politics (something which could be done just as easily through a press conference if it were truly needed). I choose to believe Don honestly feels DeVore is violating the law.

[Ive always been a dreamer]

In my personal opinion, one should only sue if the other person truly is violating the law, not to forward a personal agenda against someone you dislike/disagree with/want revenge upon. Indeed, I feel that's an abuse of our court system.

Soda, I would agree with this statement. However, it applies to both parties involved here. Even though DeVore may not be technically suing, he seems very eager to take this to court. If he weren't interested in forwarding his personal agenda, he would have tried to resolve this outside of court. I think what most of us here are saying in this thread is that this is not a matter of legality to us ... it's a matter of common decency. If Mr. DeVore was truly interested in doing what is right, then he wouldn't want to use someone else's property without their approval. I am not defending Don here because he is an Eagle and I am a fan or because of any particular political agenda; I am defending him because I believe he is the victim here, and his human rights are being abused by a fellow human being.


I realize that for some folks, the ends do justify the means... I have learned in adulthood that doing bad to do good never ever works.

I think bender pretty much sums it up in a nutshell for me.

[Nobody'sBeach]

Sometimes one just has to stand and fight. We can try to resolve the issue intelligently and respectfully. We can try to walk away. We can do our best to ignore what’s being thrown at us or taken from us, but it can reach that point where enough is enough.


No doubt the reasoning behind it is more difficult to determine when one is a public figure. Most of us would not be subjected to a public debate on usage of our intellectual property without our permission but most of us are clear on that feeling that something we own has been stolen, especially if the one who stole it is waving it around claiming they have a right to it.

I just have to give Mr. Henley credit for having his reasons even if we’re not aware of exactly what they are.

[bernie's bender]

Originally Posted by sodascouts

A key part of this effort to harness non-traditional modes of political speech began 13 months ago when, while campaigning in the Bakersfield area, I saw a fading Obama bumper sticker on a Prius. Instantly, the line, “Out on the road today I saw a Deadhead sticker on a Cadillac, a little voice inside my head said: don’t look back, you can never look back,” from the Don Henley song “The Boys of Summer” popped into my head.

- Chuck DeVore

I have to imagine that the good folks here have examined what Henley was after with the original line.... essentially that the apotheosis of subsumption of culture would be when the folks who support the dead, the symbol of the counterculture, the people who 'dropped out' of traditional, conservative culture would devolve into the ultimate symbol of consumption and American conservatism--> the cadillac.

The image of a 'fading' Obama bumper sticker on a Prius isn't the same kind of juxtaposition at all. In fact, it really doesn't make any sense in relation to the original quote... it is a kind of false irony or orthogonalism that folks use when they either A) don't get it or B) are intentionally trying to twist a point in order to redirect a debate and confuse those who are paying attention.


I have certainly seen my share of people who will go to any length in order to 'win'... In Devore's case, he did something wrong and now all we see is the wrangling and wriggling to try to make something 'right' out of it. Like so many things these days, the point of Henley's contention will be lost in a flurry of nonsense, ultimately growing more confused until the debate devolves into a simple right vs. left emotional standoff.

His bowdlerization of Henley's original line is a pretty clear example of what appears to be his main tactic---> provide heat rather than light.

[sodascouts]

The latest:

Chuck DeVore Moves for Summary Judgment in Don Henley Suit: Argues Fair Use of Songs in "Parody" Videos (http://copyrightsandcampaigns.blogspot.com/2010/04/chuck-devore-moves-for-summary-judgment.html)

[sodascouts]

Here's an article that offers some explanation of the legalese in that document linked above from The Hollywood Reporter (http://thresq.hollywoodreporter.com/2010/04/is-knocking-hollywoods-affection-for-liberals-fair-use.html):

Republican: Using Don Henley Songs is Parody of "Hollywood and Entertainment Elite" (http://thresq.hollywoodreporter.com/2010/04/is-knocking-hollywoods-affection-for-liberals-fair-use.html)
By Eriq Gardner

[Freypower]

The point? Henley and other celebrities who fought to get Barack Obama elected display a naive affection for liberal politicians who espouse broken promises and failed policies. Why listen to them?


That is HIS opinion.

Apparently he is not attacking his political opponent, but Don Henley and every other 'liberal celebrity' who has the nerve to vote for someone other than his kind. It's good to see the truth come out. Barbara Boxer? Who's she?

NB: I guess I should stress that I am sure that liberals have attacked conservatives using the same methods.

[sodascouts]

I think DeVore realizes that the "Hollywood Elite" are an easy target which will garner him a lot of sympathy amongst "regular guy" voters and that, if he can convince the court it's a parody, he'll probably win.

[Prettymaid]

Apparently he is not attacking his political opponent, but Don Henley and every other 'liberal celebrity' who has the nerve to vote for someone other than his kind. It's good to see the truth come out. Barbara Boxer? Who's she?

NB: I guess I should stress that I am sure that liberals have attacked conservatives using the same methods.


I don't think it's the voting part that bothers him, but rather the soapboxing. These celebrities know nothing more than I do. Why should anyone listen to their political views? But because it comes from the mouth of a beloved celebrity some people tend to vote that way.

[bernie's bender]

These celebrities know nothing more than I do.

I wonder if that is actually true. With power and fame come access.

If I pick up the phone and try to call a senator, I wonder how quickly they'll call me back? If Henley calls..?

Last week, I was in a meeting (for work) with several state senators and the governor (and his aides)... part of the meeting was a more intimate setting where the conversation was pretty open and very frank and information was exchanged that wouldn't be feasible in a larger context.

The gist is that I may be operating with info that the average person might not know and it helps inform my decision making. Is it possible that the 'inside scoop' that so many people think they get from various sources is actually not so 'inside'? I don't know for sure, I'm not in the inner circles.

One of my brothers is very much involved in politics and is a large donor to specific campaigns and causes... part of his participation grants him access to the candidates and to briefings on specific elements that are not easily discussed in a broader forum... So, having had those experiences, I wonder if maybe some folks with more access might not have better information.

I'm not easily swayed by celebrity. But, I do know that things I read about my own company in the regular press and from pundits are fairly hilarious (the take they have on specific issues) and totally wrong, but there is no possible way to set them right... in many cases, folks like having it twisted.

I served on our local school board as president for several years and I watched how people will form opinions based on how they think they want things to turn out... so much of being on a board is NOT talking, but being circumspect and working through issues carefully and with delicate language while being barraged by folks with agendas and sometimes just a need to 'set things right' when it is clear they don't even understand the context....

This thread gave me an opportunity to go read about Jackson Browne's successful defense of John McCain's use of his song and the drubbing McCain took. There are some artists who are not well informed and some who are very well informed and spend lots of time, effort and energy and use their access to form their opinions. It doesn't mean we'll agree with them, but I can't say that they don't have better information than I do.

I think maybe we want artists to just entertain us and be kind of cartoon characters that we can manipulate to fit our world view... and when they don't behave, we don't like it...

I'm not sure.

[Prettymaid]

I think maybe we want artists to just entertain us and be kind of cartoon characters that we can manipulate to fit our world view... and when they don't behave, we don't like it...

I'm not sure.

You got the first part right.

[bernie's bender]

You got the first part right.

Yep. And they just want to make music or movies and not have the fans pry into their private lives.

But, with one, we get the other and we make our peace with it. They will be human and have opinions (if they weren't outspoken, they wouldn't be singing, right?) Our appetite for their talent extends to the degree that we want to 'know them' except once we know them, they maybe don't agree with our views on everything...

life is complicated like that.

[Prettymaid]

But, with one, we get the other and we make our peace with it. They will be human and have opinions (if they weren't outspoken, they wouldn't be singing, right?) Our appetite for their talent extends to the degree that we want to 'know them' except once we know them, they maybe don't agree with our views on everything...

And yet there are many who do make a living singing and acting and never utter a word of political advice. Those are the ones I admire, because they are not using they're celebrity to persuade me to vote a certain way. Sometimes living by example has far greater results than speaking.

[bernie's bender]

And yet there are many who do make a living singing and acting and never utter a word of political advice. Those are the ones I admire, because they are not using they're celebrity to persuade me to vote a certain way. Sometimes living by example has far greater results than speaking.

sounds good. example?

[TimothyBFan]

And yet there are many who do make a living singing and acting and never utter a word of political advice. Those are the ones I admire, because they are not using they're celebrity to persuade me to vote a certain way. Sometimes living by example has far greater results than speaking.

http://bestsmileys.com/clapping/2.gif http://bestsmileys.com/signs16/19.gif

[Prettymaid]

sounds good. example?

Actually, the list of celebrities who don't abide by this is shorter than the other. I'll list the obvious offenders.

Tim Robbins
Susan Sarandon
George Clooney

Off the top of my head.

[bernie's bender]

Interesting. I was trying to think of artists, actors etc who I couldn't place with a 'cause' and I came up empty... that is why I asked.

I couldn't even think of an athlete who isn't aligned with some issue or cause..

[Ive always been a dreamer]

Bender - the way I read this latest discussion, the question was not "Name someone who makes their living singing and acting who isn't aligned with some issue or cause".

PM's statement that you asked her about was ...


And yet there are many who do make a living singing and acting and never utter a word of political advice.

I think the issue here is not whether people object to celebrities who have a cause, but rather to the ones who are very vocal and use whatever bully pulpit that is available to them to bring 'awareness' to their views. I think most of us pay to go to a concert to hear the artist's music, not their 'cause'.

[bernie's bender]

Bender - the way I read this latest discussion, the question was not "Name someone who makes their living singing and acting who isn't aligned with some issue or cause".

PM's statement that you asked her about was ...



I think the issue here is not whether people object to celebrities who have a cause, but rather to the ones who are very vocal and use whatever bully pulpit that is available to them to bring 'awareness' to their views. I think most of us pay to go to a concert to hear the artist's music, not their 'cause'.

Right. I was trying to think of some actor's or musicians who are not very vocal about their beliefs.. I couldn't think of any.

[sodascouts]

I guess it depends on what you mean by "very vocal."

[Prettymaid]

Remember, we're talking 'political" here...

[Freypower]

I don't think it's the voting part that bothers him, but rather the soapboxing. These celebrities know nothing more than I do. Why should anyone listen to their political views? But because it comes from the mouth of a beloved celebrity some people tend to vote that way.

I see your point, but I think that DeVore thinks the celebrities' views are valueless simply because they are liberals. If he were a liberal himself, somehow I think his take on this would be different.

The people I object to using their art for supporting endless causes are so politically correct that I don't know if I should name them, especially as I am supposed to be on their side, but they are U2 and Sting. No doubt they mean well but they come across as sanctimonious grandstanders.

I don't feel that way about Mr Henley, but I should admit that back in the 90s, when he seemed to attend every benefit going (while Glenn stayed in the background) it never seemed to end. I freely admit there is a degree of hypocrisy on my part here.

[bernie's bender]

Remember, we're talking 'political" here...

yes. I know that. When I think of movie stars who are 'very' political-->
Tom Cruise, Angelina, Brad, Mel Gibson, Bruce Willis, Kate Hudson, Salma Hayek, Redford, Newman, Colin Farrell... I wasn't being facetious... I have been thinking about it all afternoon (thank goodness... I had some really boring meetings where I needed to appear like I was concentrating!)

I wish everything was separate. (just so you know my actual position.) I wish people just ran on their ideas (there is a guy running for county sheriff and his slogan is "Simply Service. No Politics." I dig that... although the slogan is kind of political...

I wish we didn't have boycotts, I wish that people made stuff and sold it and you didn't get 3 days in a hotel if you bought a car, or 25% off (why don't they just sell it for 25% off anyway!)

I wanna go to the movie or to a concert and just listen and watch. But, I also want all of us to be less interested in who Tiger Woods boinks and definitely not the details (they had sex near the crib) we just don't need to know... but it is unavoidable... on the news, they'll announce Exxon's annual earnings and without taking a breath talk about the latest woman middle school teacher who is providing oral sex to students.

This is not to say I want things censored either... but, a little decorum might be nice.

I'm not in favor of people like DeVore, regardless of what anyone else has done or how the game is played... his actions were petty and small.

For all the people on both sides of the political fence (and as a new force begins to grow) doing bad to do good is bad. We all need to start demanding that people knock it off.

Pueblo, I'm with you on U2 and Sting. I don't know them. Maybe they really believe all the stuff they say... maybe they are who they portray themselves as.... I'm lucky as I'm not particularly interested in either group.

I do know a funny Sting though. He was on Howard Stern's radio show (I know I know) and Howard was asking him about tantric sex... (Sting has claimed he can have sex all day long.) his wife was on the show with him (I think her name is Trudy) anyway, Sting goes on and on about tantric sex and how amazing and transcendental it is etc... Finally, Howard (his redeeming quality) turns to trudy and says, "So, is this all on the level? Is it true?" and she laughs! and laughs! and then says, "well, howard if you define all day as about 3 minutes, then yeah."

As they used to say in my youth "What a burn."

[pueblo47]

I do know a funny Sting though. He was on Howard Stern's radio show (I know I know) and Howard was asking him about tantric sex... (Sting has claimed he can have sex all day long.) his wife was on the show with him (I think her name is Trudy) anyway, Sting goes on and on about tantric sex and how amazing and transcendental it is etc... Finally, Howard (his redeeming quality) turns to trudy and says, "So, is this all on the level? Is it true?" and she laughs! and laughs! and then says, "well, howard if you define all day as about 3 minutes, then yeah."

A true gem! Brought him back down to earth with a loud thump! You know some of us women get a kick out of true :angel:stories like that.

I'm not too good on the QUOTE thing, all I know to do is copy and paste.....

[Prettymaid]

I do know a funny Sting though. He was on Howard Stern's radio show (I know I know) and Howard was asking him about tantric sex... (Sting has claimed he can have sex all day long.) his wife was on the show with him (I think her name is Trudy) anyway, Sting goes on and on about tantric sex and how amazing and transcendental it is etc... Finally, Howard (his redeeming quality) turns to trudy and says, "So, is this all on the level? Is it true?" and she laughs! and laughs! and then says, "well, howard if you define all day as about 3 minutes, then yeah."

A true gem! Brought him back down to earth with a loud thump! You know some of us women get a kick out of true :angel:stories like that.

I'm not too good on the QUOTE thing, all I know to do is copy and paste.....

P47, there's a quote button in the bottom right corner of every post that you can use. I just used it on your last post!

[pueblo47]

I've used the Quote button before but I was talking about quoting parts of the post, sorry I didn't make myself clearer. Like if it's a long post and I only want to answer one sentence or paragraph, how do I isolate it? Thanks....

Ok, Bernie, I'm admitting I'm pc dumbo and Randy, quit snickering...

[Troubadour]

Once you've pressed quote, just select and delete the bits of the original post that you don't want. You can always preview your post to check that it has worked correctly. :)

[pueblo47]

Thanks for the fast reply! Well DUHHH ME! I never even thought of that, how stupid can I get???

No comments from the Peanut Gallery either........;)

[Prettymaid]

Thanks for the fast reply! Well DUHHH ME! I never even thought of that, how stupid can I get???

No comments from the Peanut Gallery either........;)

Believe me, I've asked my share of stupid questions! (Or got a name or two wrong, or misunderstood a post, or replied with incorrect information to a post...) :blush:

[Ive always been a dreamer]

Regarding the discussion about entertainers stating their political views during concerts, I've heard others mention it, but I don't recall ever hearing Don or any of the Eagles make any political comments at any of the shows I've attended. Obviously, their views are stated in the lyrics of some of their songs, but I don't remember ever hearing any blatant remarks. I do remember an incident at Don's solo show that I attended last November where a fan was acting like a jerk and the Norfolk, VA crowd gave Don a huge roar of approval. Rather than retell it, I'll just copy what I wrote in my review ...



There was one noteworthy moment though when he started into his remarks on politics, some guy immediately hollered several times “not the venue, not the venue”. Now, while I can appreciate that people don’t want to hear entertainers go on a political rant, in this case, I thought the guy acted like an extremely rude jerk. He started yelling before he even knew that Don was just going to tell a cute, funny joke. Don was very diplomatic – he just ignored him and continued with his story about the 1968 election between Nixon and Humphrey. However, in true Henley fashion, a few songs later, Don zinged the guy by saying something like “to the guy who was shouting ‘not the venue’ – I KNOW where I am”. This got a huge applause from the audience. Needless to say, nothing more was heard from the ‘jerk’ for the remainder of the evening. However, being that Norfolk is a huge military town, before Desperado, Don told a story about his father and uncle both serving in the military, and he dedicated the song to them and all the men and woman of the military who protect us. This garnered another huge round of applause.

Don may have actually gotten by with saying more that night since the guy was so obnoxious, but instead he was very respectful. So I do think crowds are usually lenient and allow the entertainer a little bit of wiggle room as long as they don't go overboard.

[pueblo47]

The mood and/or attitude of the entertainer has to be taken into consideration, maybe they're having a bad day or a good day, and it shows onstage. Some people in the audience go into it wanting to cause a little friction, get a little attention, but usually it back-fires on them, as in this case.

[Prettymaid]

Not a political comment, but the first night in Chicago, Sept., 2008 (the one where I first met Soda and TBF), Don said something like, "How about those White Sox" and you should have seen his face as he realized that he had just unleashed the wrath of all the Cub fans in the audience on himself! It was so funny! He grinned and immediately followed up with a joking "And that's our show, good night folks."

[Freypower]

They made a couple of comments in Australia. Before Take It Easy one night Glenn said 'these songs are from the last century. I wish we could go back there'. I always thought that was directed at Bush. Glenn also did the 'national surplus' joke before Already Gone one night.

But when Don dedicated Dirty Laundry to Rupert Murdoch in Melbourne, it fell totally flat. Australia had just done what Rupert told them and re-elected the Howard government.

[Ive always been a dreamer]

You know, FP - I had totally forgotten about the "national surplus" and "Rupert Murdock" references when I said I didn't recall them making any political comments at shows I'd attended. I would count these as mild political commentary. However, I guess they aren't controversial enough for people to really pay that much attention to them, so they didn't ring a bell with me.

[sodascouts]

DeVore isn't the only one who can file for a summary judgment. Henley has fired back and filed one of his own. Here's the latest, according to Pollstar in an article entitled "All They Want to Do Is Sue" (http://www.pollstar.com/blogs/news/archive/2010/04/30/720968.aspx) (side note - can these people think of more creative article titles?)

[sodascouts]

Another fascinating read from Ben Sheffner's Copyrights & Campaigns Blog called "DeVore, Henley File Oppositions to Summary Judgment; Henley shocker: I'm No 'Liberal'" (http://copyrightsandcampaigns.blogspot.com/2010/05/devore-henley-file-oppositions-to.html).

I completely agree with his assessment of the misappropriation of The Lanham Act here, as I stated in my earlier conversation with AmarilloByMorning (https://www.eaglesonlinecentral.com/forum/showpost.php?p=79652&postcount=29). I am also in agreement that parody, as it is currently legally defined, does not favor DeVore's cause. Unless DeVore's lawyers can convince a judge to re-define parody to be inclusive of works like DeVore's, I feel Henley will prevail on that count.

[Freypower]

He said that he supported John McCain in the Rolling Stone cover story, but I think he is being somewhat disingenuous. By most definitions, I would say he is a 'liberal' in the American sense.

[sodascouts]

Since I'm one who always likes to see the context of a statement before drawing any conclusions, I checked out the segment of the brief that the blog refers to (pgs 8-9). Here's the entire section that deals with Don's political views:

http://i18.photobucket.com/albums/b141/glennfreyonline/don/henleybrief1.jpg

http://i18.photobucket.com/albums/b141/glennfreyonline/don/henleybrief2.jpg

[sodascouts]

Hmm, looks like the images show up in Firefox but not in IE??? Bizarre! I'll type up the text when I get a chance.

ETA: Try going directly to my Photobucket album. You'll see 2 images that are pages of text; the more squat one is the first segment, the longer one is the second.

http://s18.photobucket.com/albums/b141/glennfreyonline/don/

[sodascouts]

OK, here's the segment of the brief where Don disavows the label "liberal" for those who couldn't see the images:
"In his declaration, DeVore asserts that Henley is a “poster boy[]” for, and “proudly a member” of, the “liberal, entertainment elite”; that he is one of “a group of celebrities associated in the public eye with Ms. Boxer, Mr. Obama and other prominent liberal politicians”; that he has “vocally supported” and is “publicly identified” with Boxer and the other politicians and policies attacked in Defendants’ videos; that Henley “fought . . . hard” to get Obama elected; that he was reportedly “booed” in Orange County for making “liberal political statements”; and that he is supportive of efforts by Boxer and others to “insert[] themselves into the American economy and enrich[] the government and certain special interests.” (DeVore Decl. ¶¶ 2-3, 6, 9-10.)

Even if this litany of Henley’s alleged “liberalism” were somehow relevant to the question of parody (which it is not), it is contradicted by the record in this case: Henley testified that he does not consider himself a “liberal”; there is not a shred of evidence of any “vocal support” by Henley for Obama or Boxer, or for any particular policies of theirs; Henley has never campaigned for Obama or Boxer; Defendants’ assertions concerning the “booing” incident are inaccurate; and the only public statement attributable to Henley concerning a politician in the record is a statement that was supportive of Republican Senator John McCain. (Henley Decl. ¶ 22; Henley Supp. Decl. ¶¶ 3-6, 8-9; Charlesworth Supp. Decl., Ex. 1 at 5-7 (Henley Dep. at 59:2-24, 61:2-62:2).)

[...]

Defendants make much of the fact that Henley is a registered Democrat who (based upon an unauthenticated Internet printout) has given money to Democratic politicians over the years (in addition to a number of Republicans, a fact overlooked by Defendants). (Henley Decl. ¶ 23; Henley Supp. Decl. ¶ 10.)"

[Freypower]

That's fine, but what I would like to know is why doesn't Don consider himself a liberal?

[sodascouts]

This is completely speculative, but perhaps it's because he finds that word too reductive to describe his political viewpoints, which cannot all be stuck into one box with the label "LIBERAL" on it - perhaps he's more complex than that.

[Freypower]

It's absolutely true that you can be both 'liberal' and 'conservative' - in my own case while I remain a 'liberal' at heart I would say my views on economic policy have veered closer towards the 'conservative' side, especially as I have grown older. I am also sure that Don's views are more complex than they may at first appear.

[Ive always been a dreamer]

Well as I said earlier, the way I choose to look at this issue is simply about what is fair in my mind, not what is legal. Having said that, I realize it is a legal issue and I sure hope Henley prevails here because I believe that there does need to be legal protection for artists in cases like these, particularly when it comes to political campaigns. I’m certainly not an attorney, but I’ll try to weigh in on this as much as my little brain can comprehend.

First of all, let me say that I believe in both the spirit of copyright protection and fair use of intellectual property. The two principles should be able to co-exist, but like most things, boundaries have to be established. I have faith in the ability of our judicial system to sort out conflicts whenever these two concepts collide.

With regard to the issue of parody vs. satire – I agree with the precedent that the courts have established, and am hopeful that Henley should prevail here.

Now about the Lanham Act and fair use, I’m not sure how this will be handled in this case. However, if I understand this correctly, I’m not sure I agree with analogy the author draws to what Henley is claiming. It’s true that anyone can claim to be ‘strongly identified’ with a piece of intellectual property. However, I believe that the burden of proof is on them. In order to be legally protected by copyright laws, wouldn’t they have to prove their strong association to the court?

[sodascouts]

Now about the Lanham Act and fair use, I’m not sure how this will be handled in this case. However, if I understand this correctly, I’m not sure I agree with analogy the author draws to what Henley is claiming. It’s true that anyone can claim to be ‘strongly identified’ with a piece of intellectual property. However, I believe that the burden of proof is on them. In order to be legally protected by copyright laws, wouldn’t they have to prove their strong association to the court?

That's not the heart of what the author is finding problematic, though. The heart of the issue is whether or not a strong association with a song should allow a person to control the song's use even when the song is not actually copyrighted to that person. (In this case, the music and lyrics of "All She Wants to Do Is Dance" is copyrighted to Kortchmar, not Henley, yet Henley is trying to control their use through the Lanham Act by virtue of his "strong association" with the song.)

I feel that is completely overreaching and it really hurts the "little guy." A songwriter like Kortchmar doesn't have a "name" with the public like Don Henley, so the song isn't "associated" with him by the public - but he WROTE it. Why should a big star get to snatch control out of the lesser-known copyright holder's hands just because he's more famous?

[Ive always been a dreamer]

Soda, I'm confused about the real differentiation here. I thought that is essentially what I was saying. In these cases, the courts can decide "whether or not a strong association with a song allows a person to control the song's use even when the song is not actually copyrighted to that person". To my way of thinking, that is appropriate. I would think that if someone has a legitimate claim to the intellectual property, then they would have no problem proving that to the court. If they don't, then they would not prevail in court. It is doubtful if their case could even make it that far. To me, it is the job of our legal system to adjudicate such matters.

[Koala]

http://www.myfoxla.com/dpp/news/don-henley-wins-round-against-gop-candidate-20100601

[Ive always been a dreamer]

Thanks for posting this Koala. As anyone who has read this thread can probably tell, I am very glad about this. I wonder if DeVore will appeal?

What I find interesting here is that one of the issues that we have been discussing wasn't even addressed in that writeup. We had been assuming that Don does not own the copyright to "All She Wants To Do Is Dance" and wondering how that would affect the outcome of this case. According to this report, it appears as if that was an nonissue. The only thing I can figure is there must be some legal thing here that we are unaware of regarding Henley's rights to the song or either the report is incorrect. :shrug:

[sodascouts]

Yeah, I wondered about that too, Dreamer - no mention of the Lanham Act. Ironically, that was the part I was most concerned about, since it would set such a (IMHO) disturbing precedent.

I'm no lawyer, but based on the legal definition of satire vs. parody, I agree with the judge that DeVore's videos fall under "satire" and thus could not claim parody protection. Selna was right to pick that out as legitimate and ignore some of the less legitimate claims. Not that my opinion means much, but I'm also pleased with this aspect of the decision for Henley. And based on Selna's description of Henley's vocals, seems like the judge is a fan!

[Ive always been a dreamer]

Okay, I was perplexed about this ruling so I did a bit more research and I think I may have solved the mystery about the copyright. According to this article I found, the recording artist is protected by copyright law as well as composer/songwriter. Assuming this is true, that would explain a lot about this case, including why is was not necessary to name Danny Kortchmar, the composer of All She Wants To Do Is Dance, as a party in Don's lawsuit. Anyway, here is the link to the article and the pertinent section:

http://cyber.law.harvard.edu/rap/copyright


Who owns the copyright?

Q. Our lyricist already has a copyright on the music. Does that mean I have no legal rights in my contributions to the recording?

A. Both the musical work and sound recording are separately and individually copyrightable. Furthermore, because every sound recording is by definition a particular recording of a musical work, every sound recording necessarily embodies two separate copyrightable works—the sound recording and the musical work. You have independent rights in your recording.

[sodascouts]

Henley would have a copyright claim if DeVore had used the sound recording by Henley. However, he used a karaoke track and his own vocal. There is nothing of Henley's recording of ASWTDID there.

That's why Henley has never tried to claim that ASWTDID is copyrighted to him in the court documents. Rather, he has tried to use the Lanham act to extend control to him as a non-copyright holder who is strongly associated with the song.

[Ive always been a dreamer]

Well if that is the case, since he didn't use the words or music, then I guess Kortchmar would have no claim either. So I guess that is why Kortchmar was not a named party in the suit.

It's pretty confusing - It appears from the article that Koala posted that copyright was not challenged or litigated. For some reason, the judge seemed to accept Henley's interest in the song.

[sodascouts]

since he didn't use the words or music, then I guess Kortchmar would have no claim either.

No, DeVore does indeed use the music that Kortchmar wrote. By virtue of using the melody, DeVore uses something copyrighted to Kortchmar.

[Ive always been a dreamer]

Well I repeat, it's pretty confusing to me. I'm assuming there is some legal explanation for why Kortchmar was not a party in the suit, or why the judge accepted Henley's interest in the song without litigating the copyright issue. :confused:

[sodascouts]

I went over to the Copyrights & Campaigns Blog (http://copyrightsandcampaigns.blogspot.com/) that always seems to be able to explain things well to laypeople like us. Here's the pertinent excerpt:

Tentative Ruling Favors Henley over DeVore on Copyright Claims, Rejecting "Parody" Argument (http://copyrightsandcampaigns.blogspot.com/2010/06/tentative-ruling-favors-henley-over.html)
"While the tentative went for Henley on his copyright claim, KTTV's report says Selna sided with DeVore on Henley's Lanham Act claim, which was premised on the allegation that the use of his songs falsely implied that the liberal singer had endorsed the conservative Republican's campaign. (Didn't someone predict (http://copyrightsandcampaigns.blogspot.com/2010/05/devore-henley-file-oppositions-to.html) exactly this result?)

Again, keep in mind that Judge Selna's ruling is tentative, and he is free to change his mind before issuing a final ruling."

ETA: I posted a question to the blog about this - we'll see what he says.

[sodascouts]

My question was answered - he said basically that the tentative ruling didn't differentiate between Henley's copyright and Kortchmar's copyright because the salient point was whether or not the videos were fair use parody, not to whom they were copyrighted.

What we've been missing is that Kortchmar is now a co-plaintiff along with Henley and Campbell, so the video can be taken down due to violation of Kortchmar's copyright even if Henley's Lanham claim does not go through.

[Troubadour]

I wish I could grasp these technical details with a little less difficulty, but I have enjoyed keeping up with this thread. I think I have learnt a few things along the way. Soda - thanks so much for keeping us up to date with things like this, and for your obvious interest in them. Your discussions and clarifications help me to understand the legal spiel a bit better!

I'm obviously very pleased that Don was successful, and it's also nice to hear that my second favourite 'D' (Danny Kortchmar) is now a co-plaintiff! To provide the inevitable shallow note, I like the bit about Henley's "soothing vocals".

[Ive always been a dreamer]

My question was answered - he said basically that the tentative ruling didn't differentiate between Henley's copyright and Kortchmar's copyright because the salient point was whether or not the videos were fair use parody, not to whom they were copyrighted.

What we've been missing is that Kortchmar is now a co-plaintiff along with Henley and Campbell, so the video can be taken down due to violation of Kortchmar's copyright even if Henley's Lanham claim does not go through.

Okay - well if Kortchmar is indeed a party in the lawsuit, that provides the missing link. Everything makes sense to me now. I have never seen anything before that indicated that Kortchmar was a named plaintiff.

It seems to me with Kortchmar on board, Henley's Lanham Act claim does, in fact, become a non-issue.

Thanks Nanc, for the inquiry and trying to get to the bottom of this. I didn't mean to flood this thread, but as I said, something wasn't adding up, and inquiring minds need to know. :wink:

Anyway, I searched to see if their was any info about the final ruling yesterday, but didn't see anything. I suppose yesterday was just a formality where the judge made his ruling official.

[Troubadour]

This names Danny Kortchmar as a plaintiff:

http://www.scribd.com/doc/32384214/Tentative-Summary-Judgment-Ruling-in-Henley-v-DeVore

[sodascouts]

I know we are talking about the interview following this decision in the "Don in the Press" thread (https://www.eaglesonlinecentral.com/forum/showthread.php?t=278&page=54), but I think the decision itself should be noted in this thread for archival purposes now that the ruling is official.

Eagles Singer Wins Case Against US Politico (http://www.theregister.co.uk/2010/08/06/eagles_don_henley_chuck_devore_copyright/)

Congrats to Mr. Don Henley and his co-plaintiffs, Mike Campbell and Danny Kortchmar.

[Ive always been a dreamer]

Wow - It seems DeVore issued the following apology, which I assume must have been mandated by the court.


“We apologise for using the musical works of Don Henley, Mike Campbell and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate licence authority before they use copyrighted works.”

And Don's remarks in the interview:


“We set a precedent that will likely discourage this kind of behaviour [use of copyrighted songs in political campaigns],” Henley remarked. "I think this is going to have a very positive effect on the creators of music."

I hope Don is right about this setting a precedence. That has been my concern all along. As I said earlier, to me, it is just fundamentally wrong for a politician to use someone else's property without their approval to further their political agenda.

IMO, Don was the victim here, and I am so glad that he pursued this matter legally. It is an important ruling, which will help further clarify and draw the lines between the copyright and fair use laws. The YouTube thing is a whole 'nother matter, and not related to the outcome of this lawsuit.

Congratulations Don, Mike, and Kootch!!!

:thumbsup: :thumbsup: :thumbsup:

[Troubadour]

Yes - well done boys!

I bet having to give that apology left a bad taste in DeVore's mouth. :lol:

[sodascouts]

DeVore also apologized for maligning Don personally, according to this article (http://www.theliberaloc.com/2010/08/06/devore-apologizes-to-don-henley-settles-lawsuit/):


"We regret all inaccurate, derogatory or disparaging remarks made about Mr. Henley during the course of this dispute."

Maybe this will also teach politicians not to mud-sling...

Yeah, right. lol

[Koala]

Past complaints silence political ad soundtracks

http://thedailynewsonline.com/entertainment/article_c36453ba-e62a-11df-9306-001cc4c03286.html (http://thedailynewsonline.com/entertainment/article_c36453ba-e62a-11df-9306-001cc4c03286.html)

[Ive always been a dreamer]

Thanks for the link, Koala.

Looks like the Henley v. DeVore lawsuit will indeed have the desired precedent-setting impact. According to this article, one of the lawyers said "he keeps a copy of the DeVore ruling handy for the next time he needs to send a candidate a cease-and-desist letter".

Congratulations again, Don!

[Freypower]

I think Don should write a song called Cease & Desist. But he probably wants to leave all this behind & I don't blame him. He could make it more of a You Don't Know Me At All lyric....

[sodascouts]

If Don could make a song about suing people enjoyable to the average non-litigious listener, that would be another precedent-setting accomplishment.