After a month of snarky letter and email exchanges, Republican U.S. Congressional candidate Joe Walsh recently removed a campaign video from his website that used a song by the Eagles band member also named Joe Walsh. Candidate Walsh called the copyright controversy "a distraction" in late January but vowed that he was "not backing down on this." Ultimately, though, he did.
The campy video features musician and political supporter Joe Cantafio performing his take on the 1971 classic "Walk Away." Cantafio used the same, or substantially similar, music from the song to create “Lead the Way,” an ode to Walsh’s campaign. When Walsh the Rocker found out a Republican used his music as part of a campaign video, an entertaining—though misguided—discussion on copyright law began.
Attorney for Walsh the Rocker, Peter Paterno, began his initial letter by saying that it "might be beneficial" for Walsh the Candidate to freshen up on his copyright knowledge. "You're not allowed to take someone's song and change the lyrics," he wrote. "This is not to say you're not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe's music—it's undoubtedly because it's a lot better than any music you or your staff could have written. But that's the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."
Candidate Walsh called the song a parody and replied: "I’m writing for myself, Joe Walsh, a Republican Candidate for Congress in Illinois 8th District. You know where that is, don’t you? It’s that wide-open part of the country you fly over on your way from Los Angeles to New York." Realizing the political opportunity now present, Walsh continued, "I hope the Democratic National Committee and Nancy Pelosi didn’t put you up to this. As the frontrunner to take on Nancy’s Democrat Incumbent Melissa Bean this year, I wonder if I’m a threat to a whole bunch of liberal interests here who want to take down a tea party candidate."
Artists have taken issue with the unauthorized use of their music in campaigns for many election cycles now, but the case of the two Walshes is different than most. Unlike other campaigns that used original versions of songs in their entirety, Candidate Walsh turned "Walk Away" into "Lead the Way," changing lyrics from "Seems to me, you just turn your pretty head and walk away" to "Seems to me, Joe Walsh is just the perfect guy to lead the way." There are also references to Bean and Speaker of the House of Representatives Pelosi.
Once informed of Candidate Walsh's video, Rocker Walsh issued takedown demands to YouTube made possible through provisions in the Digital Millennium Copyright Act, 17 U.S.C. § 512. Candidate Walsh insisted the video is an example of fair use. Because the song features new lyrics, it does stand in contrast to previous high-profile legal bouts between the Foo Fighters and John McCain or Don Henley and Republican Charles DeVore. But the fair use defense in this case is still questionable.
Courts consider four well-known factors when determining if fair use applies: (1) The purpose and character of the use, including whether the 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.
On factor 1, courts do consider parody as an example of fair use like Candidate Walsh suggested. “Lead the Way,” however, probably doesn't qualify as a parody. Courts in the copyright sphere have drawn a distinction between parody and satire. A parody pokes fun at the copyrighted work, while satire uses that copyrighted work as a vehicle to comment on something else altogether. Parody, unlike satire, needs to mimic the original to make its point and can use as much of the copyrighted work as is necessary to do so. While it is certainly not necessary to create a parody in order to qualify as a fair use, this form of social and literary criticism gets special solicitude from the courts because of the First Amendment values at stake.
The leading case dealing with what qualifies as a parody is Dr. Seuss Enterprises v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997). In that case, an author used Dr. Seuss characters and expression to comment on the O.J. Simpson murder trial. The Ninth Circuit held that "The Cat NOT in the Hat! A Parody by Dr. Juice" did not qualify as parody for copyright purposes because it did not comment on or criticize Dr. Seuss's original work, but simply used Dr. Seuss's work to make an unrelated point.
By way of contrast, the Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), that 2 Live Crew's use of Roy Orbison’s “Pretty Woman” to ridicule the original as “bland and banal” was an example of parody.
Rocker Walsh’s attorney is incorrect when he says that Candidate Walsh cannot take someone else’s song and change the lyrics. Candidate Walsh can with a parody, though in this case, he didn’t. Instead, he used the music to “Walk Away” as a vehicle to communicate his campaign platform. The new lyrics speak only to his candidacy and don’t comment on the original song in any way. Because he could have just as easily communicated this platform by using his own music, his fair use defense is considerably weakened.
It is helpful that Candidate Walsh used different lyrics and created the video with a political, rather than commercial, intent; but this isn’t likely to meet the “transformative” standard needed for fair use. Ultimately, it’s still Rocker Walsh’s music being used.
The remaining fair use factors require less extensive discussion. Factor 2 offers more protection for highly creative—rather than factual—works, so the fair use scale would tip against Candidate Walsh here as well. And because Cantafio plays the music in its entirety, factor 3 also favors Rocker Walsh.
On factor 4, it's not likely that Candidate Walsh's campaign video itself will harm the market for Rocker Walsh's original musical work. But allowing unfair copying of copyrighted material could undercut the demand for derivative works. See Roger v. Koons, 960 F.2d 301, 312 (2nd Cir. 1992) (artist Jeff Koons' use of plaintiff's "Puppies" photograph could undercut the licensing market for derivative works, weighing against fair use). If Candidate Walsh is allowed to use the music to “Walk Away” without permission, it could reduce the incentive of others to license that same music. This would pose the type of economic harm that copyright aims to prevent.
But this probably isn’t Rocker Walsh’s first concern. It seems more likely that the real offense here is not the use of “Walk Away,” but instead the candidate who used the song. Wrote Paterno to Candidate Walsh: "Given that your name is Joe Walsh, I'd think you'd want to be extra careful about using Joe's music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."
Now, that’s not likely to happen.
(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)