Don Henley Sues Congressman Over Unauthorized Song Use

I guess it's never too early for lawsuits over the 2010 U.S. election cycle to begin.

CNN reports that Eagles drummer and frontman Don Henley has filed a copyright infringement suit against Republican Congressman Charles DeVore, alleging unauthorized use of two Henley hit songs by DeVore in the congressman's campaign to unseat California Senator Barbara Boxer in 2010:

The suit filed Friday in federal court in California claims Charles DeVore is using Henley's hit songs "The Boys of Summer" and "All She Wants to Do Is Dance" without authorization.

The suit comes from two campaign videos that DeVore posted on YouTube that used Henley's music, according to the lawsuit.

In one of the videos, DeVore's campaign changed the words of "All She Wants to Do Is Dance" to lyrics that attacked Sen. Barbara Boxer, the lawsuit alleges.

The CNN article quotes Henley's position:

"Don Henley and Mike Campbell brought this action to protect their song, 'The Boys of Summer,' which was taken and used without their permission," Henley's spokesman said. "The infringers have vowed to continue exploiting this and other copyrighted works, as it suits them, to further their own ambitions and agenda. It was necessary to file a lawsuit to stop them."

The Congressman's campaign blog responds:

Rocker Don Henley’s legal threats have shut down our rough cut April Fool’s music video Obama lampoon based on “The Boys of Summer” on both YouTube and on Orange County’s alternative newspaper, the O.C. Weekly. We’re responding with a counter-claim, asserting our First Amendment right to political free speech in parody based on the Supreme Court ruling of Campbell v. Acuff-Rose Music, Inc.

While the legal issues play out, it’s time to up the ante on Mr. Henley’s liberal goon tactics. By popular request, I have penned the words to our new parody song, an expose of Senator Barbara Boxer’s new cap-and-trade energy bill that will operate as a hidden tax that will also enrich a few people.

More on this litigation from the very thorough Copyrights and Campaigns blog - see All he wants to do is .....get himself sued?

The impugned DeVore video has apparently been removed by YouTube, replaced by the site's now-ubiquitous copyright infringement claim notice. TMZ has the details:

Henley demanded that YouTube take the video down and You Tube removed it, but YouTube reposted it after DeVore insisted it go back up. YouTube contacted Henley and said they would take it down only if Henley filed a lawsuit. Hence, the lawsuit.

....

Jackson Browne v. John McCain

In a related story, a U.S. District Court has allowed singer-songwriter Jackson Browne to continue his copyright infringement suit against John McCain over the former Republican Presidential candidate's use of Browne's classic, Running on Empty, in last year's unsuccessful election campaign. Music News reported on the February 2009 ruling:

The US District Court for the Central District of California has denied the motions of Senator John McCain and the Republican National Committee to stop the lawsuit filed by singer/ songwriter Jackson Browne for the unauthorized use of Browne's voice and song Running On Empty in a presidential campaign commercial. ...In a series of rulings on February 20, 2009, Judge Gary Klausner, rejected McCain's/RNC arguments that the First Amendment or copyright's fair use doctrine allows their unauthorized use of Browne's voice and song because the use occurred in a political campaign commercial.

Browne's attorney, Lawrence Iser,said; "The Court's decision is a solid victory for songwriters and performers and reflects an affirmation of their intellectual property rights and their freedom from being conscripted as involuntary endorsers of political candidates and campaign messages. We are happy that the Court recognized that persons and parties running for office are not entitled to violate an individual's intellectual property and publicity rights simply because they are engaged in political campaigns. We look forward to presenting Jackson Browne's case to the jury." You can read the Court’s Orders denying the RNC's motions here, here, here and here.

Also see the Washington Post on the Browne-McCain litigation.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Long Road Out of Eden

For what it's worth, the Eagles, one of my favourite bands of the '70's, have just released a new, 20 song, double-disk CD, Long Road Out of Eden.

The album is the Eagles' first studio release since 1979.

Rolling Stone gives the project a good, if not wholly enthusiastic, review:

"Long Road Out of Eden," the ten-minute centerpiece of this two-CD, twenty-song album, epitomizes everything that is familiar, surprising, overstretched and, in many ways, right about the entire set. The song echoes the title hit of 1976's Hotel California, the Eagles' defining monument to mirage, money and no escape. But this time the desert is overseas and oil is the new champagne. When drummer Don Henley sings, "Now we're driving dazed and drunk" in a grainy, plaintive voice, it is an entire nation at the wheel, "bloated with entitlement, loaded on propaganda."

The Eagles are now sans long-time lead guitarist Don Felder, whose 2001 firing from the band sparked the wrongful dismissal lawsuit to end all wrongful dismissal lawsuits.

In two California legal actions, Felder claimed $50,000,000 in damages from Eagles Ltd., the corporate entity controlled by band leaders Don Henley and Glenn Frey. Felder also sued Frey and Henley personally. The lawsuits were settled in May 2007 on an undisclosed basis, presumably paving the way for the new album's release.

Felder's tell-all autobiography, Heaven and Hell: My Life as an Eagle (1974-2001), was released contemporaneous with the album, last week in Britain. The book's North American launch has apparently been delayed by continuing legal wrangling.

And while this is speculation only, the "coincidental" timing of the album and book arrivals seems to have the "magic settlement wand" of a very skilled mediator written all over it, I note.

The Toronto Star had a fascinating interview with Felder last week about the book and his turbulent Eagles career:

In his memoir, Heaven and Hell: My Life in the Eagles, 1974-2001, and during our conversation, Felder goes into detail about life on the road. Drugs, he says, helped the band at first, "taking down a lot of personal defences and walls between each other." But later, he says, cocaine-fuelled paranoia soured relationships and caused the music to become "inhumanly flawless" and sterile.

Heaven and Hell is the first time a member of the Eagles has given such a raw and detailed account of life with the band.

There is one additional sidebar here that is worth mentioning. The Eagles, no longer with any major label, have inked an exclusive retail distribution deal with Wal-Mart for the new album. Henley commented in February about this decision:

We've gotten a lot of flack for it," Henley admits. "On the other hand, people keep on saying we need a new business model, we need a new paradigm, we need somebody to do something, so we stepped up and did something. Wal-Mart is getting their environmental and labor act together. We did our homework, and they are putting some innovative programs in place ecology-wise. They can't be any more evil than a major record label, that's the way I look at it. We'll see what happens.

Wal-Mart Canada issued its own press release last week. It echos Henley in its unexpected, and perhaps forced, environmentalist messaging:

"Long Road Out of Eden" reflects the band and Wal-Mart's shared commitment to environmental sustainability. The album packaging features Domtar EarthChoice(R) papers. To ensure paper is sourced from well-managed forests, EarthChoice papers are certified by the Forest Stewardship Council (FSC), publicly endorsed by the Rainforest Alliance and supported by World Wildlife Fund and Forest Ethics. This unique CD package contains 30%post-consumer recycled fiber, and virgin fiber from FSC Certified forests or other controlled sources. Using paper products from well-managed forests has a great global impact in conserving biodiversity and improving livelihoods in local communities.

An ironic twist, indeed, for a band known best for its harmonic sneers on the inescapable evils of corporate culture and greed.

Audio samples from the Eagles' Long Road to Eden are available at this Wal-Mart link.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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