CDCA: Politico's Use of Henley Songs Copyright Infringement - Not Fair Use

In Henley v. Devore (SACV 09-481) the Central District of California doled out a "sort of rough justice" and found that a politician whose campaign got a little crazy with a karaoke machine and a mashup campaign video engaged in copyright infringement.  On June 10, 2010, summary judgment was granted, decision below.

All She Wants To Do Is Tax

They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax

From the decision (page 24):

“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes.  Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't.  Since no one can define "fair use" - justice is really rough these days.

I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another.  The Supreme Court's jurisprudence on political speech supports this view. 

I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$.  In politics, the Supreme Court has ruled that money = speech.   This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.

But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights




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