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Thread: Henley v. DeVore

  1. #21
    Border Desperado AmarilloByMorning's Avatar
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    Default Re: Don in the press

    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."

  2. #22
    Administrator sodascouts's Avatar
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    Default Re: Don in the press

    Quote Originally Posted by AmarilloByMorning View Post
    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....

    Always in our hearts, Never forgotten

  3. #23
    Moderator Brooke's Avatar
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    Default Re: Don in the press

    That's for sure. I was one of them!
    https://i.imgur.com/CuSdAQM.jpg
    "They will never forget you 'till somebody new comes along"
    1948-2016 Gone but not forgotten

  4. #24
    Administrator sodascouts's Avatar
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    Default Re: Don in the press

    The latest on Henley v. Devore, from the Copyrights and Campaigns blog:

    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, if you're so inclined to read it.

    Always in our hearts, Never forgotten

  5. #25
    Administrator sodascouts's Avatar
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    Default Re: Don in the press

    Here's the latest on the lawsuit:

    From The Sacramento Bee:

    Chuck DeVore Does Not Make Don Henley Want to Dance

    Just to be clear, Eagles frontman Don Henley does not support Assemblyman Chuck DeVore, R-Irvine, in his bid to unseat Democratic Sen. 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 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 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.

    Always in our hearts, Never forgotten

  6. #26
    Moderator Troubadour's Avatar
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    Default Re: Don in the press

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

    Quote Originally Posted by sodascouts View Post
    Chuck DeVore Does Not Make Don Henley Want to Dance
    I'd love to know what would make Don Henley 'want to dance'


    you better put it all behind you, baby, 'cause life goes on
    you keep carrying that anger, it'll eat you up inside--



  7. #27
    Administrator sodascouts's Avatar
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    Default Re: Don in the press

    More information on the lawsuit:

    http://copyrightsandcampaigns.blogsp...-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.

    Always in our hearts, Never forgotten

  8. #28
    Border Desperado AmarilloByMorning's Avatar
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    Default Re: Don in the press

    Quote Originally Posted by sodascouts View Post
    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.

  9. #29
    Administrator sodascouts's Avatar
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    Default Re: Don in the press

    Quote Originally Posted by AmarilloByMorning View Post
    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.

    Always in our hearts, Never forgotten

  10. #30
    Border Desperado AmarilloByMorning's Avatar
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    Default Re: Don in the press

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    Quote Originally Posted by sodascouts View Post
    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.

    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.

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