by Gary Ewer, from “The Essential Secrets of Songwriting” website:
According to CNN, Don Henley, one of the founding members of The Eagles, has filed a lawsuit against Senator Charles DeVore for using one of his songs for a political campaign. How much protection does copyright offer in these cases?
The whole issue of copyright and legal use of songs is such a murky world. It’s not unusual that a politician would want to use a song that they know resonates with the public: they want to resonante, too. But what can a songwriter do if their song is being used for purposes they disagree with?
Popular opinion seems to be that a copyright holder can stop the distribution of their property by simply asking. YouTube encounters this all the time. Videos are constantly being posted and removed in order to comply with a copyright holder’s request.
In Henley’s case, DeVore is responding with arrogance:
“While the legal issues play out, it’s time to up the ante on Mr. Henley’s liberal goon tactics. By popular request, I have penned the words to our new parody song.”
DeVore then posted the lyrics of a song he called “All She Wants to Do Is Tax.”
If DeVore is claiming some sort of interpretation of the Fair Use clause of the Copyright Law to post his new version of Henley’s song, he probably won’t get far. Section 107 of that law states in part that fair use must consider the nature of the copyrighted work. Certainly DeVore’s use would contravene that section.
But politicians are always using copyrighted music, often without permission. In such cases, if the copyright holder objects, most politicians and other users of copyright material will simply (and quietly, usually) stop using the song. It seems that DeVore plans to fight.
DeVore may have problems with another part of the copyright law’s Fair Use clause: use of a song won’t be considered “fair” if such use carries the possibility of damaging the potential market for that song. Henley could claim that the use of his song by the Republican party might alienate a large segment of the population.
The problem with the Copyright Law is that it is somewhat vague regarding the use of other people’s material. It specifically does not say how much of a song can be used without permission.
If your songs are being used by others for any reason that you object to, I’m afraid to say that it’s going to be something for lawyers to sort out. My advice, as always is this: Don’t just rely on copyright. You really must regsiter the copyright of any song you plan to record or shop around. This can be done for a fee (usually between $35 – $50), and it strengthens any legal case you may find yourself in.
Want a free e-book from Gary Ewer? His suite of 5 songwriting e-books are now available at a “bundle discount” price, plus a free copy of “Chord Progression Formulas”. Click here to read more.
Honestly, the candidate should show some class and pull the song out of respect for the copyrighted owner. We can discuss the various legalities, but does anyone want to elect another person who dances on the fringe of the law hollering child like taunts?
I don’t care if the candidate in Democrat or Republican, the actions of this candidate are immature, vile, immoral, and probably illegal. Haven’t we all had enough of people abusing the law?
The parody defense is by no means open and shut. It’s why these cases can and do go to court, and it’s why Henley’s lawsuit probably has a chance. Specifically, Henley may be able to claim that the (mis)use of his song is affecting future sales especially if he claims that DeVore’s use is alienating half the population.
Regarding the Campbell v. Acuff-Rose Music decision mentioned in a previous comment by “d”, that decision, it appears, supported 2 Live Crew’s use of “Oh, Pretty Woman” in part because it was commenting on the Orbison-Dees version of the song. DeVore would need to prove that his main aim in using Henley’s song was to poke fun at Henley.
If you want to read more about parody and how such use can be supported in law, read this article:
I agree with the others. Regardless of how much an album costs, you can not use someone’s song without permission. Period. The candidate then called Henley a goon for protesting. Classic politician antics. They think they can do what they want without repercussions.
Hopefully, the law will show differently. However, our law is so screwed up as well I highly doubt it.
From the DeVore campaign:
The campaign will have an official response on Monday.
Please note, Assemblyman DeVore wrote entirely new lyrics and used them to poke fun at both Don Henley and President Obama. The track used to create the song was a purchased karaoke track and not performed by Henley. This form of free speech using both parody and satire is a protected form of free speech as per rulings from our federal court system. Further, parody was used for a political and not a commercial purpose, this bolsters our claim. We expect to prevail in court. What we did is nothing more or less than what the musical political satire group The Capitol Steps has been doing for over 20 years and they have yet to pay any royalties.
Please see: Campbell v. Acuff-Rose Music
Hey amateurs. Parody is a protected freedom under international copyright law. There’s no such thing as “unauthorized parody”.
Free speech does not give license for someone to use copyrighted material without permission, and if this man cannot accept it, or is too stupid to understand exactly what that means, well he doesn’t belong in Congress. We have enough dummies there. Honestly, it doesn’t matter whether it’s a song, a poem, a novel or a published article, intellectual property must be protected, and if lawmakers can’t appreciate that, a major line of defense against unlawful or misuse of material has been hs been brought down.
Yeah but Peter, does the fact that someone’s songs can be picked up at the 99-cent store change the situation? Surely you have to agree that it’s amazingly arrogant for a would-be senator to take someone’s song without permission, then bad-mouth them and take another! The arrogance is amazing.
Don Henley suing because some political hack used one of his songs? Hey Don, you can pick one of you albums at the .99 cents store!
The flamboyant arrogance of the Republican lawmaker is galling. Devour is reckless, and on a rampage against everyone he doesn’t like. He should espouse world class, couth, and be for everyone. Instead, he proves that he is on a power hungry trip for himself, and a fascist regime. I hope the court rules against him, big time.