ENTERTAINMENT LITIGATION: ANOTHER REPUBLICAN POLITICIAN SUED OVER USE OF MUSIC

ROCK STARS SUE CALIFORNIA REPUBLICAN SENATE CANDIDATE OVER TWO SONGS

Since the election of Barack Obama, there appears to be a rash of lawsuits filed by rock and roll stars against Republican candidates for office. I previously wrote about Jackson Browne’s federal case against the Republican National Committee and Senator John McCain over the use of Browne’s song “Running On Empty” in an Ohio internet campaign spot. That case reportedly has apparently settled on confidential terms, resulting in an apology from the McCain camp.

In April, Eagles star, Don Henley, and Mike Campbell, guitarist for Tom Petty & The Heartbreakers followed suit — literally. Henley and Campbell filed two lawsuits against Republican California State Assemblyman, Charles DeVore who is running for the Senate seat currently held by Democratic Senator Barbara Boxer. The lawsuits arise from DeVore’s use of of the music in the songs “Boys of Summer” (which Henley and Campbell co-wrote) and Henley’s “All She Wants To Do Is Dance” in political spots where DeVore replaced the original lyrics with his own politically motivated lyrics.

While many are surprised that the RNC, McCain and the Ohio Republican Party settled so quickly, the issues in the Henley/Campbell suit seems less likely to favor the rockers.

FIRST AMENDMENT PROTECTION REQUIRES THE USE TO BE “TRANSFORMATIVE”

The issue in the McCain lawsuit, as I previously wrote, was the unauthorized use of Browne’s song — unaltered — in a campaign spot. There was no question in that case that the Ohio Republican Party failed to obtain a license and used the song anyway. Thus, the case turned on whether that “political” use was sufficiently protected activity to shield the ORP (and the RNC and Senator McCain) from liability for Browne’s copyright and Lanham Act claims. (Browned claimed that the political spot’s use of his song implied his endorsement of McCain for president.) That the case settled so quickly was a surprise to some because whether a campaign’s use of a song (without a license) could subject the political parties and candidate to liability was an issue of first impression.

The Henley/Campbell lawsuits present a slightly different factual scenario. In these campaign spots, DeVore’s supporters changed the songs at issue by replacing the lyrics on each song with the campaign’s own message. In this regard, DeVore’s use of the music is similar to an artist like “Weird” Al Yankovic — whose entire career seemingly is based on altering the lyrics to well known songs for comedic effect. Thus, the Henley/Campbell lawsuits not only have to clear the political use issue present in the Browne/McCain case but Henley/Campbell will also have to contend with the First Amendment’s “fair use” protection for “transformative” uses of material.

California law on this subject has been fleshed out in some detail by the California Supreme Court. If the new use by the DeVore campaign “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message” then the campaign’s use of the Henley/Campbell songs will be “transformative” and protected by the First Amendment.

THE CHARACTER OF THE SONGS ARE CHANGED WHEN THE LYRICS ARE ALTERED SUCH THAT THE FIRST AMENDMENT PROTECTS THAT USE

The DeVore campaign’s use of the Henley/Campbell songs would appear to be transformative and protected by the First Amendment. This case is unlike the direct copying situation in the Browne/McCain case. Thus, it does not appear that a court would need to reach the issue of whether the use of a song in a political campaign in and of itself is protected use. Instead, settled law concerning the “fair use” doctrine for a transformative use of a work should be sufficient to protect the DeVore use of the Henley/Campbell compositions. Just like Weird Al could change a song for comedic purposes with impunity, DeVore should be able to change songs for political purposes.

It should be interesting to watch where First Amendment advocates — who I would expect to trend towards the political left — will side in these cases filed against Republicans. However, unlike the Browne/McCain case which presented a unique and difficult analysis, the result in the Henley/Campbell lawsuits should be guided by fairly established “fair use” principles. As a practitioner in this area of law, I would hope that these cases go to decision so that the legal analysis with such unusual facts can be developed.