End of the Innocence
Posted by admin on August 27, 2010 · 4,064 Comments
Here’s a moderately happy ending to a story that we first started following in the blog ”Welcome To the Hotel California”, back in May. That posting recounted the story of Don Henley’s decision to pursue legal action against Chuck Devore, former GOP candidate for California’s US Senate seat. This would-be champion of the American people (a group which would presumably include songwriters and music publishers, at least in California) had opted for the questionable campaign strategy of using Henley’s songs, “Boys of Summer” and “All She Wants To Do Is Dance” (Henley’s co-writers, Danny Kortchmar and Mike Campbell joined him in the lawsuit) as a means to ridicule DeVore’s political opponents, Senator Barbara Boxer (Dem-California) and President Barak Obama.
As you might remember, DeVore and his co-defendant Justin Hart, the campaign’s Internet director, had re-written the lyrics to both songs, re-recorded the vocals with the new lyrics, and then posted their new creations on YouTube. Truly, it seems everyone in California, even conservative Republican state Assemblymen, wants to be in show business.
Interestingly, the whole case hinged on the difference between “parody”, which is allowed under the principle of “fair use”, and “satire”, which requires the permission of the copyright owner. The court rejected DeVore’s argument that the new lyrics parodied the original song, and concluded that the new lyrics were indeed “satire”, directed at the candidate’s political opposition. Here’s the distinction:
Parodies are re-written versions of a song which poke fun primarily at the original song. Most of Weird Al’s work falls in this category, as do the things you hear on morning radio shows. The principle of fair use provides that once you put your work into the public realm, people can re-record it, re-arrange it, or make fun of it without your direct permission. It’s called free speech.
On the other hand, satire is a different animal. A satirical use takes the song and employs it in order to make fun of someone or something else, outside of the song or the songwriter. That function requires the permission of the copyright holder, as one is now altering and using the song to say something the songwriter never intended. Despite DeVore’s legal arguments, it’s pretty clear that the uses of Henley’s songs were satirical, because they didn’t so much ridicule the songs themselves or Henley as an artist, but rather political figures never mentioned in the original lyrics.
Incredibly, DeVore and Hart would seem to have made another miscalculation when they chose to put their creations on YouTube, presumably in synchronization with a visual image. As Music Publishing 101 students will recognize, this requires a synchronization license, which must be negotiated with all of the parties who control the copyright. And DeVore calls himself a “law-maker”? Maybe he should try reading some of them.
He probably will now, as he’s seen firsthand the consequences of copyright infringement. Not only was the case settled for payment of an undisclosed sum, DeVore had to issue an apology to the songwriters, which must have really rankled.
“We apologize for using the musical works of Don Henley, Mike Campbell, and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works”, they admitted. Oh and by the way, despite his display of songwriting genius, DeVore lost the primary election to Carly Fiorina. Talk about so much wasted time.
On the heels of his legal victory, Henley gave an exclusive interview with the website, Copyrights and Campaigns (www.copyrightsandcampaigns.blogspot.com), a great website, full of information about current developments in copyright law. The most interesting thing about the interview was not Henley’s acknowledgement of his big win, which he called “a moral victory, and a victory for every copyright holder in the United States”. What struck me about Henley’s interview was the almost valedictory tone of resistance in the face of overwhelming odds, as he tried to make a case that songs were works of art that deserved at least some fundamental respect, just as one doesn’t generally paint mustaches on the Mona Lisa or sing along at the opera. As Don confessed, he’s running against the winds of change on this issue:
Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys and playthings is frustrating”. Henley noted that he does not license his songs for commercials and only rarely does so for uses in films and television. (Copyrightsandcampaigns.com)
In fact, the concerns that Henley raises allude to a much bigger, deeper and more relevant issue than any dispute on the distinction between parodies and satire. The truth is that the few growth opportunities that exist in music publishing are exactly in the areas that Henley is complaining about. Lyrics on t-shirts? Mash-ups on the internet? Music as background for games, toys or greeting cards? Music to sell products, music with funny homemade videos, music as ringtones, music for karaoke games or music as fashion accessory? These are the things fueling what little growth exists in the music industry. But Henley is right—they don’t sit very comfortably with a generation that once thought music held the potential for political or social change, or that at least popular music could aim for an artistic value beyond Top 40 charts and novelties.
This larger issue holds a number of important implications for music publishers. The most obvious concern is that music publishers need to understand their rights under their various writer-publisher contracts, as well as the rights of their songwriters. Who has the final approval on licensing opportunities like advertisements, synchronization placements or even satires? In most instances, the publisher, as the owner of the copyright, has the power to license, but many contracts will allow the songwriters to specify specific uses which require the writers’ permission. Some contracts may exclude particular exploitations entirely. And of course, administration deals will frequently give the publisher less control than a full or co-publishing agreement.
More importantly, publishers need to get a sense from their songwriters where each composer falls on the subject that Henley raises. Some will be more than happy to embrace any new opportunity you can dig up. Others will be appalled that you even considered putting their “baby” in a game or on a mobile phone. It’s in the long-term interests of all parties to understand each other’s point of view before requests come in, rather than after .
Especially for younger songwriters and publishers, it might be worth considering whether there’s some real insight in Henley’s comments. Back in March, my dispatch from SXSW in Austin noted that music seemed to increasingly exist solely as a marketing tool—not to sell the music itself, but to sell other products or shows. I’m not so sure that’s a good thing. Perhaps it explains why we have a society in which, as it’s so often noted, music is more present than ever, yet less and less valued.
There’s no question that the generation that made Don Henley a star continues to care more deeply about music, purchase more of it, attend more concerts, and support its artists longer and more unwaveringly than the generations that followed. Maybe that’s because the people who made the music took it seriously, believed it meant something, and refused to compromise on how it could be presented. It bothered them to see a Deadhead sticker on a Cadillac. Henley wrote the line as satire. The modern audience see it as just one more ironic ingredient in the pop cultural stew.
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