In Henley v. DeVore, a federal court recently held that senatorial candidate Charles DeVore’s two political advertisements featuring the songs "The Hope of November" and "All She Wants to Do Is Tax" infringed Don Henley’s "The Boys of Summer" and "All She Wants to Do Is Dance," ruling against DeVore’s fair use defense.
The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?
The trouble is the misguided way that some courts have distinguished "parody” from “satire” in when measuring fair use. "Parody," in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously ">sent-up Roy Orbison’s “ ">Pretty Woman," the Supreme Court found that the use was permitted. A "satire," in contrast, involves using a work to comment on something other than the work itself.
Some courts have drawn the conclusion that "satires" are disfavored under the fair use doctrine. That’s the mistake the court made in Henley v. DeVore. The court determined that "November" was mostly a satire (with a dash of parody), and that "Tax" was a satire through and through. According to the court, if DeVore wanted to use Henley’s songs, he had to be making fun of Henley, not other politicians.
From a First Amendment point of view, this is a bizarre way to address political speech. For the court, the political purpose was a strike against fair use, because the court considered the videos to be a commercial use, seeking "publicity and campaign donations." In contrast, the Supreme Court has recognized that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." In contexts other than copyright, a law blocking this kind of speech would have to meet the strictest First Amendment scrutiny.
So what about fair use, which is supposed to serve as a proxy for First Amendment concerns? Here, the court appears to have misunderstood the potential for market harm that is a critical part of the fair use test. The test should be informed by the purposes of copyright—ensuring that creators have adequate incentives to create—and the importance of the First Amendment.
Can anyone say that musicians like Don Henley would give up on song-writing if they knew that politicians could use their works in satires? Obviously, no one shopping for "The Boys of Summer" would say, "Hey, you know what, I’ll just watch that DeVore ad again instead." But the court insisted DeVore prove the negative, and show that the videos would not harm the potential licensing market for Henley's songs. The court was apparently concerned that "licensees and advertisers do not like to use songs that are already associated with a particular product or cause."
Under that view, however, few satires will ever pass fair use muster. That would inflict far more harm on future creators than DeVore did on Henley’s works. Satire is an art form that has enriched the political process since time immemorial. In the fourth century BC, Aristophanes, a comic playwright in ancient Athens, routinely skewered politicians and influenced this early democracy. Satire has continued to play a vital role in democracies through today.
Satire is most effective when can draw from the well of society’s shared experiences, using common cultural references to leverage the commentary and reach a wider audience. It can take a known quantity, and add new meaning and message – classic characteristics of a fair use.
Fortunately, courts have increasingly begun to understand that fair use can and should apply to transformative satires. So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.