A few weeks ago I posted a blog (Will “fair use” transform political campaign ads?) that addressed several recent claims made by composers against political candidates who used the composers’ music with new lyrics to bash their opponents. But what happens if a candidate uses an opponent’s own composition in a political video against him? Will a court rule this to be a legitimate parody or protected political speech?

Jeff Dursetwitz, who lives in upstate New York, is an old friend of mine. We were both in a band together in college. He sent me an article about a similar controversy surrounding the battle for New York’s 19^th Congressional District concerning Congressman John Hall.

John Hall is a former member of the band Orleans and the composer of two of the band’s big national hits—“Dance With Me” and “Still the One.” Two years ago, he ran for and won a Congressional seat in an upset victory. This year’s race is again close. In an effort to gain the advantage, his current opponent, Nan Hayworth, started a web site “Young Voters for an Orleans Reunion Tour” (Young Voters) that includes a link to their video “Vote With Me.” Created by Hayworth’s supporters, the video uses the very recognizable music of Hall’s classic song “Dance With Me” and adds new lyrics that urges citizens to vote for Hayworth: “Vote with me. Let’s make John Hall leave Washington, D.C. … We can’t take you, we want you to go.” Near the end of the video, the lyrics drop off and the music remains while messages about unemployment and other campaign issues scroll across the screen.

The site appears to be cleverly disguised as an Orleans fan site and, in what appears to be an effort to protect the creators of the site from direct liability, the music video does not reside on the site but is linked to and posted on Vimeo.

An attorney for the group Orleans sent a cease-and-desist letter, demanding that the Young Voters refrain from use of the band’s registered trademark, Orleans, in its domain name www.orleansreuniontour.com. In addition, EMI Music, the music publisher for the song, sent a letter demanding the Young Voters discontinue use of the composition and requesting an accounting of their use of the song. Young Voters posted on YouTube a letter written by their attorney in response to YouTube’s removal of the” Vote With Me” video from its site. In the letter, the attorney does not address copyright issues, but solely argues that political speech is protected by the First Amendment.

Neither Hall, nor any of his allies, has filed for an injunction to stop the ongoing dissemination of the video. He retaliated in a manner reminiscent of his Sixties roots—he produced his own music video. With new lyrics to his classic hit, Hall’s video is titled Patriots for John Hall—Still the One. Hall and a large cast of supporters sing “He’s still the one we need in Washington… He’s the one to get things done, he’s still the one.”
I presume this strategy is not intended to waive his copyright claim against his opponent but is a pure political calculation: there is too little time left before the election and he needs to focus on keeping his Congressional seat. The publicity could bring attention to the suit rather than to his campaign. And the release of his video may grab media and voter attention away from his opponent’s work.

My instincts as a copyright attorney would be to have Hall sue for infringement, even after the election is over. In the past, the use of music for political purposes has typically favored the composer. To qualify as a parody, according to the Supreme Court in Campbell v Acuff Rose Music, Inc., the new song must parody the original and not be a vehicle for new lyrics that ridicule something (or someone) else. Hall’s suit would be an interesting twist. While “Vote With Me” does not parody the lyrics of the original “Dance With Me,” it could be argued that it parodies, in part, the song’s author, John Hall.

The Supreme Court did not face this issue in the Campbell case. In that case, the song was a parody of the lyrics of “Pretty Woman” and not of its composer, Roy Orbison. Given the circumstances, a court could potentially find this new use to be protected political speech, and not the copyright infringement that, according to current case law, it appears to be.

One of the questions that is likely be addressed is whether the Young Voters could have made their point just as effectively with licensed or original music. How necessary was it for them to use one of Hall’s own compositions? Unless a court decides to make an narrow exception to established precedent for composer candidates, Hall should succeed if he decides to pursue a claim.