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Song use draws threat to sue Heller camp
Friday, Oct. 17, 2008 | 2 a.m.
Beyond the Sun
Republican Rep. Dean Heller has “appalled” the widow of composer Cy Coleman with an unauthorized use of his Broadway hit “Big Spender.” Heller uses the song in TV and radio ads that target 2nd Congressional District opponent Jill Derby, a former member of the state’s Board of Regents, which oversees public higher education.
The Script: To the tune of “Big Spender,” a woman sings the modified lyrics: “Hey Jill Derby. Hey big spender. Hey liberal spender.”
The Video: Opens with a clip of Derby speaking. Next is the text: “As chairwoman, Jill Derby spent your tax dollars on expensive junkets and fancy hotels.” Then: “Almost $100,000” and “Year after year, Derby was named one of the biggest spenders on the board.” Next: “While Derby was a member of the board, the Review-Journal called it the most “dysfunctional, embarrassing public body in the state.”’ And lastly: “We can’t afford Liberal, Big Spender Jill Derby in Washington.”
The Uncouthness: “Big Spender” is from the musical “Sweet Charity” and includes the lyric: “I don’t pop my cork for every guy I see.” On stage, the female lead sings the song as she wiggles and shakes to get the attention of a wealthy guy.
To Heller, apparently, that screamed: political ad.
Heller’s campaign asked the Cy Coleman Estate for permission to the use the song and was denied. The campaign used it anyway, despite cease and desist letters. Damon Booth, vice president of the estate, said the estate denied the request because the authors never intended the composition for political use. Coleman family members who live in Northern Nevada were “shocked and appalled” to see the ads on TV, Booth said.
Heller’s spokesman, Stewart Bybee, said in an e-mail that the ad is protected as political speech and by the Fair Use doctrine of copyright law. “The song is an obvious parody,” he said. “It’s a clear spoof on the original which presents no rational likelihood that any reasonable person would mistake it for the original song or lyrics.”
The Fair Use doctrine is open to interpretation, but general guidelines for a parody require it to be about the copyrighted material itself, according to Stanford University’s Copyright & Fair Use center.
Heller’s ad most likely would be considered satire, not parody, and not covered by the Fair Use doctrine because the subject of the joke is Derby, not the song.
One example: The 9th Circuit Court ruled in 1997 that the Fair Use doctrine did not apply to an author who mimicked a book by Dr. Seuss to tell the facts of the O.J. Simpson murder trial because the target wasn’t Dr. Seuss. It was the trial.
The Coleman estate said it plans to sue, with a portion of the settlement to go to Derby’s campaign.
(On a more traditional Truth Squad note, Derby’s campaign says official expense records from her time as a regent show the total is about half of the “almost $100,000” cited by the ad.)
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Typical republican dirty tricks - especially using the song after being denied the right by the Cy Coleman Estate. I hope they follow through with a lawsuit that will put him in the poor house not back in the House of Representatives.
"Pop that cork" Dean Heller!
As the person who filed this lawsuit, I would like to weigh in with my
opinion.
My late husband, Cy Coleman, was a prolific songwriter who contributed
to the Great American Songbook. His songs are often used in
advertising, movies and television, etc. There is a long-established
process by which people obtain the legal right to use this material.
To legally use this property (these songs), the user must apply for
permission, and if permission is granted by the owner, the user must
pay for the use of it. My husband left the ownership of these songs
to myself and to our now 8 year old daughter, Lily Cye. It is through
the licensing and use of these songs that I pay my bills and feed my
family. Dean Heller and his advertising agency applied for the use of
our song "Big Spender". I promptly and officially denied his request
because this song was never intended to be used as an attack on
anything or anyone. Despite the denial of this request, Dean Heller
proceeded to use the song in radio and television ad attacking his
opponent, Jill Derby, with whom I was completely unfamiliar. To stop
the unauthorized use of the song, we were forced to send the campaign
a cease and desist order. Dean Heller ignored it. He continued to
use my private property (the product by which I make my living)
repeatedly, for days, on radio and television, in heavy rotation.
I am grateful to live in a country where private property is respected
and protected. It is my responsibility to aggressively protect the
copyrights of all my husband's compositions. I have no choice but to
proceed with this lawsuit with all vigor.
Shelby Coleman
President, Notable Music, Inc.