## Facts

- Don Henley, Mike Campbell, and Danny Kortchmar owned copyrights in the musical compositions “The Boys of Summer” and “All She Wants to Do Is Dance.”
- Chuck DeVore’s U.S. Senate campaign produced and posted two online videos using recognizable elements of those songs with altered lyrics for political commentary:
  - “The Hope of November,” set to “The Boys of Summer,” criticizing Barack Obama, Nancy Pelosi, and supporters.
  - “All She Wants to Do Is Tax,” set to “All She Wants to Do Is Dance,” criticizing Senator Barbara Boxer’s tax policies.
- The videos retained substantial portions of the originals, including the melody and much of the lyrical structure, while changing words to convey campaign messages.
- The campaign posted the videos on YouTube and linked them to campaign pages soliciting donations.
- After objections and DMCA takedown notices, the copyright owners sued for copyright infringement and for false endorsement under § 43(a) of the Lanham Act (with related state-law unfair-competition theories).
- The parties filed cross-motions for summary judgment on infringement/fair use and on the Lanham Act claim.

## Issues

1. Whether the campaign’s altered-lyrics videos were fair use under 17 U.S.C. § 107, including as alleged parody (including “parody of the author”).
2. Whether the videos falsely implied Henley’s endorsement of DeVore’s campaign in violation of Lanham Act § 43(a).
3. Whether infringement, if any, was willful as a matter of law at summary judgment.

## Decision

- The court granted summary judgment for plaintiffs on copyright infringement and rejected defendants’ fair-use defense as to both videos.
- For “The Hope of November,” the court treated the work as only marginally transformative (assuming “parody of the author” could qualify) and held the four-factor balance still weighed against fair use.
- For “All She Wants to Do Is Tax,” the court held the work was satire aimed at a political target rather than parody of the song or author and found all fair-use factors weighed against defendants.
- The court dismissed the Lanham Act false-endorsement claim at summary judgment.
- The court denied summary adjudication to both sides on willfulness, leaving willfulness unresolved.

## Legal Principles

- A claimed parody must target the original work (or, as assumed here, potentially the author) rather than using the work merely as a familiar vehicle to comment on something else; satire is less likely to be fair use.
- Under § 107 factor one, political messaging does not preclude a finding of commercial purpose when the use functions as campaign advertising and solicitation for contributions.
- Under § 107 factor two, highly creative musical works receive strong protection, generally weighing against fair use.
- Under § 107 factor three, taking substantial musical and lyrical elements “far beyond” what is needed for any parodic point weighs strongly against fair use.
- Under § 107 factor four, harm to an existing or potential licensing market for derivative uses (including political licensing) supports finding no fair use.
- A performer’s musical performance, without more, was not treated as a protectable trademark basis for a § 43(a) false-endorsement claim in this context.

## Conclusion

The court held that campaign videos closely copying two copyrighted songs with altered political lyrics were not fair use, entered summary judgment for the rights holders on copyright liability, dismissed the Lanham Act false-endorsement theory, and left willfulness for later proceedings.


Henley v. DeVore, 733 F. Supp. 2d 1144 (C.D. Cal. 2010)