LOS ANGELES--()--On June 1, 2010, US District Judge James Selna will hear oral arguments related to summary judgment motions filed by music legends Don Henley, Mike Campbell, and Danny Kortchmar, on the one hand, and United States Senate candidate Chuck DeVore, on the other hand. The case concerns DeVore’s use of two well-known songs, “The Boys of Summer” and “All She Wants to Do Is Dance,” in campaign advertisements. Henley and the other plaintiffs have sued DeVore for copyright infringement and violation of the Lanham Act, the federal trademark statute. The case hinges on largely unsettled legal issues, and the court’s ruling will help define the scope of copyright protection and First Amendment free speech rights.
“All She Wants to Do Is Dance”
DeVore’s copyright defense is based on the fair use doctrine. He argues that his videos are parodies of the original songs and are therefore protected as lawful, transformational works under the Copyright Act. According to DeVore’s lawyer, Chris Arledge of One LLP, “This case may decide the extent to which people can use cultural landmarks—be they famous musical compositions, films, or visual art—in order to convey a political or social message. If copyright owners are able to stretch the Copyright Act as far as Henley suggests, the Copyright Act will become an obstacle to a free and open marketplace of ideas.”
The fate of Henley’s Lanham Act claim will also have national repercussions. Henley argues that if a performer is associated with well-known songs, he or she has the legal right to control their use even if the performer does not own the copyright. According to Arledge, “If courts adopt Henley’s argument, it will be a disaster for copyright owners. Traditionally, only the copyright owner must give consent for another party to use a copyrighted work. But under Henley’s theory, a performer who does not own the copyright could stand in the way of the copyright owner’s wishes and block a license or even sue a user who had entered into a valid license agreement with the copyright owner. Henley’s argument, if accepted by the courts, would make licensing copyrighted works more difficult, more expensive, and less common.” To Arledge, a ruling in Henley’s favor would decrease a copyright owner’s right to control his or her works and therefore decrease the value of all copyrighted works.
About One LLP
ONE LLP is a Southern California-based intellectual property and entertainment law firm specializing in copyright, trademark, patent, trade secrets, and media and entertainment law. The firm’s clients have included Bettie Page Clothing, Bette Davis, CMG Worldwide, X17 Agency, Western Digital, and Experian. Individual members of the One LLP team have received numerous accolades for their work, including recognition as Rising Stars by Southern California Super Lawyer Magazine.