HOPE, Don Henley, Abortion, and the Politics of Fair Use

In politics, advocates increasingly borrow—or, depending on your perspective, steal—from songs, videos, and other copyrighted works to make their own messages more pointed, topical, or stimulating. Take, for example, artist Shepard Fairey's iconic 2008 red, cream, and light-blue "HOPE" poster of Barack Obama, which was fashioned from an Associated Press stock photograph of the candidate. Fairey insisted that his unauthorized use of AP's copyrighted photo was permissible under the fair-use doctrine, which allows a third party to use a copyrighted work without the owner's permission in limited circumstances. AP disagreed and sued Fairey for copyright infringement. Associated Press v. Shepard Fairey, Case No. 09-1123 (S.D.N.Y). After protracted litigation over the issue of fair use, a federal judge in New York sided with AP, and the case was resolved on unfavorable terms for the artist.

This collision between politics and fair use has played out twice in recent years in Orange County, both times in the courtroom of U.S. District Judge James V. Selna in Santa Ana. In both cases, a conservative candidate or advocacy group used an ideological opponent's copyrighted material for political purposes, and was sued for copyright infringement. In the first case, Henley v. DeVore, the court found that a political candidate's alleged parodies of two Don Henley songs did not qualify as fair uses. Henley v. DeVore, 733 F. Supp. 2d 1144, 1164 (C.D. Cal. 2010). In the second case, the court found that an anti-abortion group's re-editing of a family-planning clinic's video was a fair use. Northland Family Planning Clinic v. Ctr. for Bio-Ethical Reform, 868 F. Supp. 2d 962, 983 (C.D. Cal. 2012). 

A Window Into Fair Use

Comparing Henley and Northlandillustrates the vagaries of fair use, a sometimes elusive legal concept that determines when it is permissible to use another person's copyrighted work, without that person's permission, for purposes such as commentary, criticism, parody, or reporting. As one court observed, the fair-use doctrine is "so flexible as virtually to defy definition." Princeton Univ. Press v. Mich. Doc. Services, 99 F.3d 1381, 1392 (6th Cir. 1996).

Fair use was recognized as a common-law defense to copyright infringement centuries ago, and was codified in the Copyright Act of 1976. 17 U.S.C. § 107. "It has been said that the affirmative defense of fair use permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05. Section 107 directs courts to consider four factors to determine if a use is fair:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 

Henley v. DeVore 

In Henley, Republican state assemblyman and then-U.S. Senate candidate Chuck DeVore rewrote two classic songs by Don Henley, and posted what his campaign described as parody music videos of the songs on YouTube. The first video featured a version of Henley's song "Summer."  DeVore explained that seeing an Obama campaign sticker on a Toyota Prius inspired him to rewrite "Summer," which has a notable lyric about "a Deadhead sticker on a Cadillac." DeVore's version of the song was called "The Hope of November," and satirized President Obama and then-House Speaker Nancy Pelosi. DeVore's campaign synched the song to a video of Obama and Pelosi, among others, and made some changes to the lyrics (see graphic).

DeVore's second song featured a reworked version of Henley's song "Dance," retitled "Tax," to suggest that, for Democratic Senator Barbara Boxer, "All She Wants to Do Is Tax."

After Henley sued for copyright infringement, DeVore argued that his use of Henley's songs was a fair use because he parodied Henley's originals. The court rejected that argument, focusing on the sometimes hazy legal distinction between parody and satire. In a parody, the court stated, the effectiveness of the criticism comes from "tension between a known original and its parodic twin. In contrast, the satirist who ridicules subjects unrelated to the work lacks the same claim to use of the work, which the satirist merely uses to get attention or to avoid the drudgery in working up something fresh." Henley, 733 F. Supp. 2d at 1152. Courts traditionally have extended broader fair-use protections to parodies than to satires.

The court noted that a song parody could be a fair use if it criticized the original artist's views, but "distinguish[ed] between a use which directly targets the author for holding a particular view and a use which merely targets a view that happens to be held by the author." Id.DeVore argued that The Hope of November parodied Summer "by using its themes of nostalgia and disillusionment to mock Henley and other Obama supporters who, in November, look back wistfully at Obama's campaign and bemoan his failure to deliver on the promised hope." Id. at 1156. But the court found that the song "merely echoed" and did not critique the narrator's disillusionment in Summer, and that any criticism of Henley himself was "a relatively minor element of the main satirical purpose of the song—targeting Obama and his supporters."  Id. at 1156-57.

Although the court acknowledged that DeVore's other song, Tax, contained more explicit social commentary than Hope of November, it again rejected his parody argument. The court found that DeVore's song "evoked the same themes of [Dance] in order to attack an entirely separate subject. This is satire, not parody." Id. at 1158.

Based on its view that DeVore's works were satires, were inspired by commercial interests (specifically, campaign fundraising), and borrowed far more of the original songs than was "reasonably necessary to conjure up Henley," the court rejected the candidate's fair-use defense. Id. at 1161, 1163-64. 

Northland Family Planning Clinic v. Ctr. for Bio-Ethical Reform 

The court reached a different result in Northland. There, the plaintiff-family planning clinic had made a video called "Every Day, Good Women Choose Abortion," which conveyed the clinic's message that "abortion is not uncommon, and that women are good regardless of how they exercise their reproductive rights."  Northland Family Planning Clinic, 868 F. Supp. 2d at 966.

The defendants borrowed portions of Northland's video to make their own series of anti-abortion videos. One video alternated between Northland's original footage and graphic footage of abortion procedures, while keeping the original narration of the Northland video intact, ostensibly to expose the "fallacies" of the Northland video. Id. at 967. Another video opened with a Biblical citation, then alternated between segments of the Northland Video, using both its audio and visual, and the "clips of 'the strongest abortion-in-progress shots,'" which were accompanied by a foreboding song called "Natural One." Id. Northland's original footage comprised approximately half of each video. Id. at 968.

The defendants posted their videos on YouTube, and used them to solicit donations. After Northland sued for copyright infringement, the defendants moved for summary judgment based on fair use. Distinguishing Henley, the court found that the activists' videos were clear parodies of the Northland Clinic's video. The defendants turned "the Northland Video's message 'on its head' by alternating clips of the calm, empathetic doctor explaining that choosing to have an abortion does not make you a bad woman, with shockingly graphic images[.]" Id. at 971. The power of the videos, the court ruled, came from the contrast of the original narrator's voice and conservative attire with the "gruesome and seemingly savage" nature of the actual abortion procedures. Id. at 972. The court also noted that "unlike Henley, in which the defendants 'evoked the same themes' as the two original songs from which it borrowed 'to attack an entirely separate subject,' here, Defendants copied the Northland Video for the primary, if not exclusive, purpose of attacking it." Id. at 973. The court continued that "[w]hile the accused Videos may comment globally on the abortion debate, they are primarily focused on criticizing elements of the Northland Video." Id. Thus, the court found that the criticism was pointed directly at the Northland video, and not just at abortion in general. Id.

The court proceeded to find that the defendants' use of the Northland videos was a fair use, even though half of the defendants' videos were made up of Northland's content. Id. at 968, 982-83. The court explained that the defendants were entitled to use that much of Northland's videos because they were not well-known to the public—contrasting those videos to Don Henley's songs that were very familiar to the public. Id. at 980-81. 

Lessons Learned

Henley and Northland both involved purported parody videos, which were posted to YouTube and provoked copyright-infringement lawsuits. Despite these similarities, the cases had different outcomes for two reasons. 

First, the court found in Henley that neither parody song explicitly criticized the original or Henley himself. Rather, the defendants used Henley's songs to criticize liberals and Democrats more generally, and perhaps to implicitly criticize Don Henley. In contrast, the videos in Northland were obvious and explicit commentaries on the original pro-choice videos, and used the original footage to draw out inconsistencies in the original's arguments. 

Second, the two cases can be distinguished by the amount of the original works used in relation to how much each court believed was necessary to make the parody effective. In Henley, the court found that if the purpose of the songs were to evoke Henley and criticize him, it was unnecessary to create full-length copies of the songs that used the majority of the originals' lyrics. Rather, because the original songs were so well-known, it would have been possible to evoke them by only using snippets. In contrast, the Northland video was not well-known, so it was necessary for the activists to use a greater amount to convey their point.

These decisions suggest several takeaways:

• Political speech or parody is not automatically protected by fair use, especially if the allegedly infringing work is used to solicit donations;
• Use of another person's copyrighted material to make a point that is unrelated to the original material is likely satire, not parody, and is less likely to receive the protection of fair use;
• A parody should directly criticize or comment on the work being parodied;
• A parody that uses as little of the original work as necessary to get its point across is more likely to qualify for fair-use protection;
• An obvious parody is more likely to be a fair use than a subtle one; and
• Fair use is a nuanced legal doctrine.

Using opponents' copyrighted materials against them may make for strong rhetoric, but it may also lead to a lawsuit. As these two cases illustrate, distinguishing between a fair use and an infringement of a copyrighted work is a delicate exercise.

Jonathan Segal is an associate at Davis Wright Tremaine's Los Angeles office, who specializes in media, entertainment, and intellectual property law, and legal issues created by emerging technologies in media and entertainment. He can be reached at JonathanSegal@dwt.com. Alonzo Wickers is a partner at Davis Wright Tremaine in Los Angeles who specializes in media, entertainment, and intellectual property law. Alonzo represented Comedy Central and the creators of South Park in a key recent fair-use case in the 7th Circuit, Brownmark Films v. Comedy Partners, et al., 682 F.3d 687(7th Cir. 2012), and regularly counsels film, television, video game, and print media clients on fair-use issues. Alonzo can be reached at AlonzoWickers@dwt.com.