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MA GOP's lame ad and James Taylor's copyright: upon further analysis, it's still not "fair use"

5:50 PM ET, 10/16/2010
I posted last night about the MA GOP's silly ad that may have committed a non-silly violation of federal copyright law.  A vigorous discussion ensued, with EaBo and Dan Kennedy taking the view that using a James Taylor song as the background music to an ad attacking Deval Patrick, Barack Obama, and (says EaBo) today's rally at which all three are appearing, should constitute "fair use" as a "parody."

Turns out, there actually is some law on this question.  My bottom line: based on existing law, this is an interesting case, but while it's not a slam-dunk for either side, the better argument is that the ad does not constitute "fair use."  To the flip!
"Parody" that uses copyrighted material can, under some circumstances, constitute "fair use."  Here's the Supreme Court outlining this general principle in the famous 2 Live Crew case, known formally as Campbell v. Acuff Rose Music, Inc. (emphasis mine).

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing....

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use.... The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non parodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

So that's the basic framework.  In that case, the Court went on to find that 2 Live Crew's work, which drew upon but substantially altered Roy Orbison's song "Oh, Pretty Woman," was indeed a parody of the original Orbison song, and that several of the factors weighed in favor of "fair use" (it did not finally resolve the case, however).

Now, how does this framework apply to our ad?  Well, first of all, it's pretty clear that the ad is not actually a "parody" of Taylor's copyrighted song.  The ad simply uses a lengthy excerpt from the song verbatim; it is not altered or rewritten in any respect.  Rather, taking a view favorable to the MA GOP, what the ad is presumably trying to do is poke fun at James Taylor himself, perhaps as a "loony liberal" who likes Democrats, rather than at his work.

Is that a "parody"?  In some cases, yes - which of course doesn't actually answer the "fair use" question.  The only court decision I've been able to find that concerns the use of copyrighted songs in political ads came down in June over the use of two of Don Henley's songs in ads for a Republican CA-Sen candidate named Chuck DeVore.  That judge considered the question of lampooning the messenger rather than the message, and wrote:

In many cases, the most effective tool of ridiculing a public figure - a time-honored, First Amendment activity - is through that person's own creations. This is particularly true where a person's fame derives from the person's expressive works, as the case often is with artists, musicians, authors, and the like. The First Amendment demands that these public figures be open to ridicule, just as their works should be.

OK, so if an ad is genuinely holding the creator of a copyrighted work up to some sort of criticism (as opposed to using the work to make a different point), then it may qualify as a "parody," which may or may not mean it constitutes "fair use."  

So what happened in the Henley case?  The case concerned two political ads, one called "Tax" and one called "November."  In both cases, DeVore took songs by Henley ("All she wants to do is dance" and "The boys of summer," respectively), wrote new lyrics, and recorded the new lyrics (sung by a DeVore staffer) over a karaoke version of the music of the original songs.  According to the opinion, in "Tax" the song was used to make a point unrelated to Henley himself; it criticized Barbara Boxer and policies she supports.  In "November," the song was mostly anti-Obama but also contained some elements of criticism of Henley himself as a (perhaps disillusioned) Obama supporter.

The opinion is quite long, and I'm not going to go through it point by point here.  The bottom-line assessments, though, are I think quite instructive for the MA GOP ad.

The fair use analysis involves a delicate balancing of the four factors with an eye towards the purposes of copyright. "The doctrine has been said to be 'so flexible as virtually to defy definition.'" The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

That said, the Defendants' song "Tax" does not present a difficult question. The song is pure satire which fails to take aim at the original or its author. It therefore lacks justification to borrow from "Dance," which, as a musical composition, lies at the core of copyright protection. And it does far more than borrow from "Dance" - it appropriates the entire melody, rhyme scheme, syntax, and a majority of the lyrics. Defendants have also failed to show that widespread use of this and similar satirical songs would not affect either the market for the original or potential derivatives. "Tax" is clearly not fair use.

"November," on the hand, presents a closer question, assuming that targeting the author is a legitimate parodic purpose. Although it primarily targets Obama, it does, in part, lampoon Henley as an Obama supporter. It may thus contain some parodic element and would be justified in appropriating some of "Summer." However, "November" goes far beyond what is necessary to conjure up Henley to hold him up to ridicule. As with "Tax," "November" copies the melody, rhyme, syntax, and most of the lyrics. Given the extent of the copying, Defendants have not met their burden of demonstrating the absence of market impact. Although the Court finds this to be a closer question than "Tax," the Defendants have not met their burden of demonstrating that "November" constitutes fair use.

Let's give the MA GOP the maximum benefit of the doubt, and assume that part of the purpose of the ad is to lampoon James Taylor as a Barack- and Deval-loving moonbat, so that it falls into the category of "parody" rather than "satire."  I still think that the analysis of the Henley court - which seems quite solid to me - leads to a conclusion that the MA GOP's ad is not "fair use."

First, James Taylor is not the only, or even the principal, target of the ad.  The ad's principal target is without question Deval Patrick - that's what the copy says, that's what the photographs say, and that's what the MA GOP cares about.  Secondarily, President Obama is a target of the ad - there are lots of photos of him, including him with Martha Coakley, and some of the copy (e.g. the stimulus numbers) relate to him.  James Taylor is a minor target at best; he is never directly mentioned, and the viewer is left to infer the relationship between Taylor, Obama, and Patrick.  The Henley court's analysis of the "November" ad seems precisely analogous in this respect:

Thus, assuming the validity of "parody-of-the-author," the Court finds that the parodic theme - the lampooning of Henley himself- is reasonably perceptible. It is, however, a relatively minor element of the main satirical purpose of the song - targeting Obama and his supporters.

Now, it is possible to argue that because this ad was released on the eve of a rally at which Obama, Patrick, and Taylor were all appearing, there's a stronger parodic theme than in the Henley situation.  I think that argument has some force - but not much.  The problem with it is that it assumes a lot of knowledge on the part of the viewer.  A lot of people know about James Taylor and his music; some subset of those, probably a fairly small one, know that he is a liberal who tends to support Democrats; of those, probably quite a small subset know that he lives in Massachusetts and supports Deval Patrick; and of those, an even smaller subset knows that he was present at an Obama/Patrick rally on October 16, 2010.  It's only to that final subset that this additional parodic element could possibly be apparent, yet there's theoretically no limit to the number of people who could view this ad, which is of course posted on YouTube and is therefore accessible worldwide.  So I think it's fair to say that the parodic aspect of the MA GOP's ad is slightly - but only slightly - more prominent than DeVore's "November" ad.

However, other factors in the MA GOP ad make it much less likely that it constitutes "fair use."  Perhaps most obviously, the song itself is not altered at all.  Here's what the Henley court said about the "amount and substantiality of the portion used" factor in the "fair use" analysis.

In the parody context, the third factor turns on "the persuasiveness of a parodist's justification for the particular copying done, ... [;] the extent of permissible copying varies with the purpose and character of the use." Campbell, 510 U.S. at 586....

It is undisputed that both "November" and "Tax" borrow heavily from the respective originals. The Defendants used karaoke tracks of each song as background and Hart supplied vocals. The melodies remain identical, as do the rhyme scheme and syntax. While the Defendants changed some of the lyrics, 65% of the "Summer" lyrics and 74.7% of the "Dance" lyrics were copied verbatim. This factor turns on whether such extensive copying was justified....

As discussed above, "November" may have some parodic element - it pokes fun of Henley as a disillusioned Obama supporter. It may therefore be justified in using at least some of "Summer" in order to evoke Henley's image. However, this does not necessarily justify the extent to which "November" copies. In Campbell, the Court found that the defendant's song commented on the naivete of the original work. The defendants' song borrowed the opening riff and the first line of the original, but substantially changed the lyrics, added new musical elements, and altered the beat of the original. Nevertheless, the Court remanded the case for determination of whether the amount taken - just the opening riff and the opening line - was excessive in relation to the parodic element.

The Defendants' copying in "November" exceeds that in Campbell, where the Court declined to decide the fair use question despite finding legitimate parodic purpose. Indeed, the amount of the Defendants' copying goes far beyond anything that has been found to be fair use in the parody context... Indeed, the Defendants' appropriation approaches or exceeds the amounts borrowed in many cases where courts rejected the fair use defense....

The Defendants' justification for the copying of "Summer" is the necessity of evoking Henley. While this may allow for some appropriation, the Court finds that the amount borrowed goes far beyond that reasonably necessary to conjure up Henley. The Defendants did not take a portion of the song or alter the melody - they took virtually everything.... The Defendants argue that a lesser amount, a 30-second snippet perhaps, would have diluted the parody's impact and they would have been unable to "convey all of the political and parodic points they wished to make." However, the parodic element, if any, of "November" is its lampooning of Henley, not of Obama, Pelosi, or their supporters generally. Using Henley's music to make those political points is not justified under Campbell.

This reasoning, it seems to me, pretty much puts the final nail in the coffin of the MA GOP's "fair use" claim.  In the MA GOP's ad, an unaltered excerpt from Taylor's song runs throughout the entire 1-minute spot.  The Henley court noted that "[t]he Defendants did not take a portion of the song or alter the melody - they took virtually everything."  Here, of course, the MA GOP did take everything.  It's pretty much impossible to argue that such a lengthy, unadulterated excerpt was needed to "conjure up" James Taylor - Taylor's voice is readily recognizable and is very familiar to millions; a much briefer excerpt would have sufficed.  There is no doubt that the copying in the MA GOP's ad far exceeds what even DeVore did, and, it seems to me, that fact more than compensates for any possibility of the MA GOP's ad having slightly more of a "parodic" quality than did DeVore's "November" ad.

This is a long post - necessarily so, because the "fair use" doctrine is fairly complicated and consists of a multi-factor balancing test.  I thought it was worth doing, both because I think "fair use" is an interesting subject, especially in the context of political advertising, and because I think the MA GOP has stepped over the line in this case.  

I call on the MA GOP either to take down the ad, or to secure a proper license from James Taylor - precisely as the national GOP and Chuck DeVore said they would do following their settlements with Jackson Browne and Don Henley.

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