Judge rejects challenge to Don Henley case against Republican

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Judge rejects challenge to Don Henley case against Republican

Mon Jul 13, 2009 @ 12:44PM PST

By Eriq Gardner

Eaglesdvdhenleyc Don Henley's lawsuit against California senate candidate Chuck DeVore has survived a motion to dismiss the case.

Henley sued DeVore after the Republican politician used Henley's "Boys of Summer" song as the basis for new lyrics in a campaign video uploaded to YouTube. Henley claimed that DeVore had violated his copyright on the song and implied a false endorsement.

In the motion to dismiss, DeVore ridiculed the plaintiff, asking the court to "strip away some clutter from the complaint," pointing to the fact that Henley's voice wasn't used in the campaign ad and that the Lanham Act doesn't apply to political speech. 

Judge James Selna largely addresses the last point in a decision rejecting the motion, pointing to a recent decision in a very similar case involving singer Jackson Browne against John McCain. In that case, the judge ruled that political activities constitute "services," which, interpreted broadly, satisfies the "in commerce" requirement of the Lanham Act. In other words, political advertisements can be construed as commercial speech too.

Now, both Henley's case against DeVore and Browne's case against McCain are going forward and could settle whether political campaigns can use unlicensed music in advertisements. 

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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