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Order on Motion for Summary Judgment in Henley v. DeVore

Order on Motion for Summary Judgment in Henley v. DeVore

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Published by Ben Sheffner
Order granting summary judgment for plaintiffs on copyright claims and for defendants on Lanham Act claims in Don Henley et. al v. Chuck DeVore et al, Case 8:09-cv-00481-JVS-RNB (June 10, 2010)
Order granting summary judgment for plaintiffs on copyright claims and for defendants on Lanham Act claims in Don Henley et. al v. Chuck DeVore et al, Case 8:09-cv-00481-JVS-RNB (June 10, 2010)

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Published by: Ben Sheffner on Jun 15, 2010
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 09-481 JVS (RNBx)
DateJune 10, 2010Title
Don Henley, et al. v. Charles S. Devore, et al.
1
Unless otherwise noted, the facts the Court recites are undisputed.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 37
Present: TheHonorableJames V. SelnaKarla J. Tunis Not PresentDeputy ClerkCourt ReporterAttorneys Present for Plaintiffs:Attorneys Present for Defendants:Not PresentNot Present
Proceedings:
(IN CHAMBERS) Order Granting in Part and Denying in PartPlaintiff’s Motion for Partial Summary Judgment (Fld 4-9-10) andDefendants’ Motion for Summary Judgment or, in the Alternative,Partial Summary Judgment (fld 4-9-10)
Musician Don Henley (“Henley”) claims that politician Charles DeVore(“DeVore”) infringed the copyrighted songs “The Boys of Summer” and “All She Wantsto Do Is Dance” with two political advertisements featuring the songs “The Hope of November” and “All She Wants to Do Is Tax.” DeVore claims fair use. The Court alsoconsiders whether DeVore’s songs falsely suggest endorsement by Henley.I.BACKGROUNDPlaintiff Henley is a world-famous, Grammy-winning, multi-platinum-album-selling songwriter and recording artist.
1
He is a founding member of the Eagles, creditedwith one of the best-selling albums of all time. He has also enjoyed a successful solocareer, releasing the multi-platinum album Building the Perfect Beast in 1984. Two of the songs on the album, “The Boys of Summer” and “All She Wants to Do Is Dance,”were top-ten hits at the time.“The Boys of Summer” (“Summer”) was written by Henley and Plaintiff MikeCampbell (“Campbell”), a founding member of Tom Petty and the Heartbreakers, and thetwo jointly own the copyright to the song. The song is primarily about the singer’snostalgia for a past summer romance, though the Defendants contend that the song has a
Case 8:09-cv-00481-JVS-RNB Document 88 Filed 06/10/10 Page 1 of 37
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 09-481 JVS (RNBx)
DateJune 10, 2010Title
Don Henley, et al. v. Charles S. Devore, et al.
2
“Deadhead” refers to a fan of the Grateful Dead, a rock band popular during the 1960’s and70’s. See United States v. Washington, 106 F.3d 983, 1017 (D.C. Cir. 1997).
3
YouTube is a publicly-available website which hosts videos posted by third parties like theDeVore campaign.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 2 of 37
political theme, noting the line where the narrator “saw a DEADHEAD
2
sticker on aCadillac,” which they argue demonstrates a nostalgia for the liberal politics of the 1960’s.The lyrics to “Summer” are attached in Appendix A.“All She Wants to Do Is Dance” (“Dance”) was written by Plaintiff DannyKortchmar (“Kortchmar”), a respected songwriter, producer, and recording artist.Kortchmar is the beneficial owner of the copyright to “Dance.” The song depicts anAmerican couple on a trip to an unspecified foreign country in the midst of violence andunrest. The woman, however, is either oblivious to or ignores the tumult and simplywants to dance and party and “get down.” The Defendants interpret the song as being acomment on American foreign policy in Latin America and the American public’s apathytowards the situation. The lyrics to “Dance” are attached in Appendix B.DeVore is a California assemblyman currently seeking the Republican nominationfor one of California’s U.S. Senate seats. Justin Hart (“Hart”) is the DeVore campaign’sDirector of Internet Strategies and New Media. His primary duty is to conduct online-based fundraising activities and otherwise get publicity for the DeVore campaign. Hedoes this through various means, including creating videos to be posted on DeVore’swebsite and on YouTube.
3
Hart’s compensation is directly tied to the amount of funds hebrings in.This case arises from two online videos produced by DeVore and Hart forDeVore’s campaign. The first contains the song “The Hope of November” (“Hope”), aplay on “Summer.” DeVore was inspired to create the song in March 2009 after seeing aBarack Obama (“Obama”) sticker on a Toyota Prius, which reminded him of the“DEADHEAD sticker” lyric from “Summer.” DeVore proceeded to revise the lyrics of “Summer” to create a song that pokes fun at Obama, Nancy Pelosi (“Pelosi”), andObama’s supporters. The lyrics of “November” are attached below in Appendix A.Hart and DeVore decided to produce a campaign video based on the “November”
Case 8:09-cv-00481-JVS-RNB Document 88 Filed 06/10/10 Page 2 of 37
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 09-481 JVS (RNBx)
DateJune 10, 2010Title
Don Henley, et al. v. Charles S. Devore, et al.
4
Under the DMCA, a “service provider,” such as YouTube, is not liable for copyrightinfringement for material posted on its website by others so long as it promptly removes the materialupon receiving a notification of infringement from the copyright holder. See 17 U.S.C. § 512(c).However, to avoid liability to the person who originally posted the allegedly infringing material, theservice provider must replace the material upon receiving a counter notification from the original poster.Id. § 512(g).
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 3 of 37
lyrics. Hart downloaded an instrumental-only, karaoke version of “Summer” whichsimulates the song’s instrumental track. Hart supplied the vocals for “November,”attempting to emulate Henley’s style. He then produced the video by compiling imagesof Obama, Pelosi, and a few others, and synchronized the “November” track with thevideo. This video was posted to YouTube and other online sites sometime in March2009.Once Henley got wind of the Defendants’ online video in early April 2009, he senta notice to YouTube under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C.§ 512, requesting that the video be removed, and YouTube promptly complied.
4
Only afew days later, DeVore sent a DMCA counter notification to YouTube requesting that thevideo be reposted on the grounds that it constituted parody. Meanwhile, DeVore decidedto use a second Henley song for his campaign. This time, DeVore and Hart created acampaign video featuring the song “All She Wants to Do is Tax” (“Tax”), their take on“Dance.”“Tax” was written by DeVore, who modified the lyrics of “Dance” to lampoonBarbara Boxer (“Boxer”), one of California’s Democratic Senators, and to criticize cap-and-trade and global-warming polices. Just as with “November,” Hart used aninstrumental-only track of “Dance,” supplied his own vocals using DeVore’s lyrics, andpaired the song with a video he created using a variety of online images and videos of,among others, Boxer, Al Gore, and Disney character Scrooge McDuck. The Defendantsposted the video to YouTube on or about April 14, 2009. On April 17, 2009, this actionwas filed by Henley, Campbell, and Kortchmar, alleging copyright infringement andviolation of the Lanham Act.The parties have filed cross-motions for summary judgment, each seeking relief onPlaintiffs’ First through Sixth Claims for Relief for direct, vicarious, and contributorycopyright infringement of each song and Henley’s Seventh Claim for Relief for false
Case 8:09-cv-00481-JVS-RNB Document 88 Filed 06/10/10 Page 3 of 37

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