In a ruling that could prevent politicians from turning classic rock standards into campaign trail songs, a California judge ruled yesterday that a pair of Don Henley tracks — "All She Wants to Do is Dance" and "The Boys of Summer" — were unlawfully adapted by California Republican senatorial candidate Chuck DeVore, who wrote and recorded altered versions without permission for a pair of YouTube campaign videos, The Hollywood Reporter's Esq. blog reports. While many rockers have taken Republicans to trial over non-approved use of their music, most notably Jackson Browne who won a legal victory over John McCain, this marks the first case where a rock great took a politician to court over a parody.
According to the judge's decision, Henley first took issue with one of the ads — the "Boys of Summer" knock-off "Hope of November," which ragged on President Barack Obama and Hollywood's liberalism — in April 2009, asking that YouTube remove the videos. In response, DeVore not only demanded that YouTube restore the ad, he further stirred the pot by turning Henley's "All She Wants to Do is Dance" into "All She Wants to Do is Tax," once again without the approval of Henley, who supported Obama during the 2008 Presidential election. In the resulting lawsuit, Henley claimed DeVore infringed upon his copyrights by lampooning his songs, while DeVore countered his versions were parodies of the original versions and constitutionally protected.
The judge saw it differently. After parsing the differences between "parody" and "satire," U.S. District Court Judge James Selna wrote that DeVore's versions of Henley's songs failed to mock the song and songwriter itself — which would have been allowable as parody. "[DeVore] argues that ["Hope of November"] parodies the original by using its themes of nostalgia and disillusionment to mock Henley and other Obama supporters who, in 'November,' look back wistfully at Obama's campaign and bemoan his failure to deliver on the promised 'hope,' " Selna wrote. "This, however, does not 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."
Citing a handful of examples ranging from J.D. Salinger's lawsuit against a Catcher in the Rye sequel written by another author to Tom Waits' action against Frito Lay, Selna ultimately ruled that DeVore's mock versions of Henley's songs exceeded the rights of fair use and that, ultimately, the copyrights of "Boys of Summer" and "All She Wants to Do is Dance" were infringed upon. The case is similar to Joe Walsh's lawsuit against an Illinois Republican congressional candidate also named Joe Walsh, who turned the James Gang hit "Walk Away" into the campaign video "Lead the Way" without permission.