Henley v. DeVore

[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-...idate-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.

[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.