The Political Parody Problem

In a bid to win the hearts and minds of voters, lately political candidates have touted, among other things, their musical predilections. In at least two recent cases, candidates have sanctioned the alteration of the lyrics, but not the tune, of some of their favorite music to shore up political support. The musicians who own the copyrights in those songs weren’t exactly thrilled.

All They Want To Do Is Campaign

In April 2009, various musicians, including Don Henley, sued Charles DeVore, who unsuccessfully sought the Republican nomination for a U.S. Senate seat currently held by Senator Barbara Boxer, for, among other things, infringing the musicians’ copyrights. The musicians alleged (PDF) that DeVore produced videos reworking the lyrics of the musicians’ songs “The Boys of Summer” and “All She Wants to Do Is Dance” into songs titled “The Hope of November” and “All She Wants To Do Is Tax,” which poked fun at President Obama, his supporters, and Senator Boxer. DeVore asserted that “The Hope of November” and “All She Wants To Do Is Tax,” constituted parodies, and were thus protected by the fair use doctrine. Specifically, DeVore maintained that the altered songs commented on political views conveyed in the songs. On cross-motions for summary judgment, the court disagreed (PDF), reasoning in large part that DeVore’s videos did not target Henley’s political views so much as they targeted views that may have been held by Henley (the court noted that Henley disputed DeVore’s assumption that he held liberal-leaning views, but explained that its inquiry focused on whether a work’s parodic character could reasonably be perceived).   DeVore recently apologized for using the musicians’ work without their permission and settled the matter for an undisclosed amount.

In another case this past January, Peter Paterno, an attorney for Joe Walsh, a guitarist for the Eagles, wrote to Joe Walsh (PDF), a Republican candidate for Congress, about the unlicensed use of his client’s song, “Walk Away,” in which the narrator ostensibly recounts his unsuccessful efforts to mend his relationship with an uninterested partner, to compose “Lead the Way,” which extolls Joe Walsh’s ability to “lead the way” in battle against Democratic policies and positions.  In the bitingly sarcastic letter, Paterno demanded that the candidate discontinue his unlicensed use of Walsh’s song.  Walsh refused, claiming that “Lead the Way” was a “parody song of the political process.” However, a “parody of the political process” standing by itself is insufficient to demonstrate the parodic nature of the work for purposes of a copyright infringement; rather, Walsh had to show that “Lead the Way” lampooned or commented on “Walk Away.” Perhaps having realized that his song had very little, if anything, to do with trying to fix a broken relationship, Walsh ultimately decided to take “Lead the Way” down from his website.

Fair Use Funny?

For purposes of a copyright infringement action, a work qualifies as a parody if it uses aspects of a copyrighted work to create a new work that comments on the underlying copyrighted work.

Owing to the limitation that a parody comment on an underlying copyrighted work, parodies enjoy a somewhat favored status under the fair use doctrine. This is because the four factors used to determine whether the fair use doctrine protects a putative parody—the purpose and character of the use, the nature of a copyrighted work, the amount copied, and the effect upon the potential market—typically weigh in favor of finding that an alleged parody constitutes a fair use since a parody by its very nature is transformative and expressive, requires significant borrowing from the underlying work, and the author of a copyrighted work will not likely license a work criticizing the author’s own work.

In contrast, satirical works, which use another’s work to comment on something other than the underlying work, do not necessarily fare as well under these factors because satirical works typically require greater justification for appropriating a copyrighted material. For this reason, would-be satirists often try to stretch the meaning or message ascribable to a copyrighted work in order to assert a parody-based fair use defense and avoid the heavier burden typically applied to satires.

Aren’t There Different Rules For Politicians Political Speech?

The fine distinction between satire and parody exists in a certain amount of tension with the relatively strong protections afforded political speech under the First Amendment.   Although copyright law does not proscribe the substance or ideas behind political messages, it does potentially entitle an author to enjoin the form in which a political message may be delivered.

As the DeVore and Walsh cases demonstrate, parody will rarely, if ever, serve as a viable defense in a copyright infringement action where the allegedly infringing work fixates on a political view rather than the underlying work itself. To stave off claims of copyright infringement, political satirists would thus do well to take aim at works with overtly political tones or otherwise limit their commentary to the works from which they borrow.

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