Don Henley Kicks Chuck DeVore’s Ass in Court

HT to our friends at the Huffington Post but State Rep. Chuck DeVore has already lost his first battle of the month and its not even primary day.  DeVore lost a lawsuit for his campaign’s parodies of Don Henley songs to attack Senator Barbara Boxer.  Chuck’s claim to fame here – he’s the first political to lose a lawsuit over a song parody.  So much for that copy of the pocket Constitution.  Perhaps an expanded edition dealing with First Amendment law will fit on Chuck’s iPad.

From TPM.com: 

Judge James Selna ruled yesterday that DeVore’s versions were “satire” and not “parody,” which would have been allowable. He wrote that DeVore’s “Hope Of November” doesn’t “comment on or criticize the content of ‘Boys of Summer.’ Rather, ‘November’ uses those themes and devices to mock a separate subject entirely, namely Obama and his supporters.”

Henley’s lawsuit marks the first time a musician has won in court over a parody, and follows another musical lawsuit by David Byrne of Talking Heads, who sued Charlie Crist for use of “Road To Nowhere” in a campaign video.

Even more entertaining with the comments on the TPM website:

“The endless series of these incidents is quite revealing. It shows that real Republican values are not “pro-business” or “property rights” as they so often claim, but “whatever I can get away with.”

Of course, they’re also hampered by the fact that nearly every creative artist with mass appeal is a liberal, who probably wouldn’t license them the rights if they asked. If you run for decades against Hollywood, popular music, and art, payback’s a bitch, and you’re left with no option but to try to steal it.”

So it looks like Chuck will be lucky to score 20 percent of the vote and that his US Senate hopes are fading faster than a chant of “Drill Baby Drill” by Louisana Republicans.

Chuck was pretty sure of his arguments last November and he wrote this post about Don Henley’s “thin skin.”

The laughless legions of the left have struck again.  Eagles band member Don Henley demanded the removal of my “Hope of November” parody song on YouTube.  YouTube took the music video Obama parody down yesterday after it was approaching 1,000 views.   
 
I was inspired to write the lyrics for “Hope of November” using Henley’s “The Boys of Summer” as a starting point after I saw a fading Obama bumper sticker while campaigning in the Bakersfield area.   
 
Liberal warriors are notorious for their thin skins and Don Henley is no exception. 
 
Perhaps I should mine some of Henley’s other songs for satirical gold.  “The End of the Innocence” comes to mind.  That 1989 song slammed Ronald Reagan, a man I worked for in the Defense Department, in the form of the line, “they’re beating plowshares into swords, for the tired old man that we elected king.”  At this line in the song the music video shows several Reagan posters while at the line “armchair warriors lead us into war” a television displays scenes of LtCol Oliver North’s congressional testimony.  Or perhaps the overbearing lyrics of “Little Tin God” will do.  The line referring to Reagan, “The cowboy’s name was Jingo,” cries out for parodic reengineering. 
 
YouTube rather blandly announced that my First Amendment right to parody was being infringed “…as a result of a third-party notification by Don Henley…”  But I wonder if the behind the scenes muzzler was David Geffen.  Geffen, who’s so far to the left that Hillary Clinton was too conservative for him, owns the label for the “The Boys of Summer.”  Geffen has lawyers, lots of lawyers. 
 
Perhaps Geffen’s lawyers are familiar with Campbell v. Acuff-Rose Music, Inc. a 1994 U.S. Supreme Court case that dealt with “fair use” in parody.  In this case, the Supreme Court ruled that 2 Live Crew’s parody remake of the late Roy Orbison’s “Pretty Woman” constituted fair use in spite of the fact that the rap group had taken much of Orbison’s material whole cloth and used it for commercial purposes.  My own parody using “The Boys of Summer” to lampoon President Obama uses original lyrics and clearly meets the Court’s four factor fair use test: “1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and 4) effect of the use upon the potential market for or value of the copyrighted work.” 
 
Bottom line, we’ll be filing a counter notice today with YouTube today to reinstate our “Hope of November” music video rough cut, then work to make a better cut of the parody song available.  If YouTube again bows to Geffen’s lawyers or Henley’s whine, we’ll take it to where we should have posted it at the start: PopModal, “The Conservative Alternative to YouTube.” (The now-banned “Hope of November” music video can still be seen at: http://www.chuck76.com/nov/.) 
It’s not all doom and gloom for Chuck. He’s made history in a strange sort of way.  Perhaps he should adapt some songs from artists who agree with his far right wing view of the world. Ted Nugent, Charlies Daniels, or Martina McBride.