Scene 1: Employees of one of the world’s largest oil companies are found to be in league with a right-wing film producer in an effort to produce a documentary aimed at helping the company fend off a lawsuit in a third-world country’s court that, if lost, could cost the company more than U.S. $100 million.

Scene 2: New York-based lawyers, said to be working on behalf of thousands of poor plaintiffs in their suit against the oil company, ask a U.S. federal court judge to order the right-wing film producer to provide his court with outtakes from the documentary, and the judge says, “Yes.”

Scene 3: Recognizing that the outtakes are now part of the official court record, members of the news media request copies of them. In turn, the federal judge orders that copies of the outtakes should not only be provided to members of the media requesting them but to members of the general public.

Scene 4: After obtaining the outtakes, members of the media spend countless hours airing video snippets, painting the “Big Oil” company in the worst light possible and, in so doing, aiding and abetting the plaintiffs in the lawsuit.

Unfortunately, a real-world scenario diametrically opposite the one described above seems to be taking place now. Below is a list of the players involved:

• Chevron Corporation is the defendant in a contentious lawsuit — now 17-years-old — being tried in an Ecuadoran court;

• The Amazon Defense Coalition, an Ecuador-based nonprofit that claims to represent thousands of poor citizens of the third-world country, is the plaintiff;

• Representing the plaintiff in the lawsuit is a legal team headed by New York-based trial lawyer Steven Donziger;

• Joseph Berlinger is the man who produced the controversial 2009 documentary, “CRUDE,” which, though only 1 hour and 45 minutes in length, seems endless in its criticism of Chevron; and
  

• Members of the mainstream media have covered the lawsuit in anti-Chevron stories similar to a CBS News 60 Minutes segment, “Amazon Crude,” that aired May 3, 2009.

On April 30, attorneys for the San Ramon, Calif.-based oil giant asked Judge Lewis A. Kaplain in the U.S. District Court for the Southern District of New York to order the release of outtakes from Berlinger’s flick, arguing that they might contain incriminating information that might help settle the case sooner than later. Within days, the judge granted Chevron’s request and ordered the release of outtakes from “CRUDE.”

Several months passed until, lo and behold, the folks at Chevron were proven right!

On Aug. 3, I shared a report, the title of which — ‘Crude’ Footage Reveals Lies Behind Trial Lawyers’ Suit Against Chevron — revealed what was uncovered by Carter Wood at the National Association of Manufacturers’ Shop Floor blog.

Fast forward to Oct. 7, 2010, some five months after Judge Kaplan declared the outtakes were fair game. In a memo to his court clerk, he stated that copies of the outtakes should be provided to three requesters — Thomson Reuters, American Lawyer Magazine and ALM Media — as well as to “any member of the public who requests (them) upon payment of the reasonable cost of duplication and blank media.”

As of today, I could find no evidence that any of the outtakes have been published. Not by any of the requesters. Not even by CBS News!

Why? Because the amount Chevron would have to pay if it loses the lawsuit is estimated at $113 billion — up from $27 billion figure reported in previous reports about the case — and nothing would make members of the left-wing media happier than to take a huge financial chunk like that out of “Big Oil.”

I close with two messages:

To the mainstream media, I say, “Your bias is showing!”

To Mr. Berlinger, I say, “I hope you remember how much emphasis you placed on your First Amendment freedom of expression when you were vehemently opposing the release of outtakes from your film [To refresh your memory, click here or here]. When people start to air the outtakes from your film in YouTube videos, remember that those outtakes are now part of the public record and, therefore, protected by federal law.”

Stay tuned!

NOTE: For more background about this case, read more than three-dozen posts I’ve written about it during the past 18 months.

At their own expense, the Vandals had the cover replaced with one that didn’t use the offending font. Everything was hunky-dory until March 24th when the Vandals were hit with a lawsuit filed in the Delaware courts. According to The Wrap, Henry Horbaczewski, counsel for Variety’s owner said: “We sued them, and they accepted a settlement agreement in which they promised to stop misusing our mark, because we wanted to stop the misuse, not their money. They then ignored their agreement.”

Here’s the problem, the Vandals changed the art. But copies of the old cover art are floating around somewhere on the net, which is nigh impossible to redact. In fact, the very article I linked to shows the old and new covers. Variety isn’t willing to reveal where this infringement took place. So this is essentially a nuisance/intimidation suit, the kind meant to squeeze money from some soft targets who can ill afford an extensive legal battle that they would probably win. Since lawsuits are usually unpredictable, most people settle. Which is something sue happy sharks have known for years. That’s why there are so many frivolous lawsuits in the land. Usually it’s individuals going after companies for some coin.

But here we have a corporation like Variety, which for years served as a press release organ for major media companies, shaking down the little guy. Why? Consider that the newspaper business is seeing major declines across the board. As of last year Variety only had a circulation of around 24,000. Ad revenues are way down as Hollywood trims its spending. And ad revenue is the biggest share of income a circulation like Variety has. So they’re looking for easy marks who can help them get through a tough quarter. Why not cook up some trumped up excuse to sue a rock band?

The desperation here is almost worthy of a movie of the week, if anyone cared about Hollywood suicide rituals. It’s bad enough when a big company picks on the little guy, but when it’s from a paper that proudly boasts about Hollywood movies where evil corporations are ridiculed and demonized on a daily basis, it becomes the kind of pathetic sideshow you’d expect from the land of spectacle and cheap thrills.

Their lawsuit has no real merit. But that’s not the point. In Hollywood, you have to show what a big shot you are. Unfortunately for Variety, they just made themselves look weak.

Ed. Note: Vandals’ bassist Joe Escalante has contributed to Big Hollywood.

Plaintiff, Master Sgt. Jeffrey S. Sarver, is, in fact, the film’s main character “Will James” or “Blaster One” [which was Master Sgt. Sarver's "call signal" during his tours of duty in Iraq]. 

Screenwriter Mark Boal with Director Katherine Bigelow

The suit alleges that the screenwriter of “The Hurt Locker,” Mark Boal, was allowed, as part of an armed services press program, to be embedded in Master Sgt. Sarver’s unit. Virtually all of the situations portrayed in the film were, in fact, occurrences involving Master Sgt. Sarver that were observed and documented by Screenwriter Boal.  Master Sgt. Sarver also coined the phrase, “The Hurt Locker” for Boal.

Ultimately, a magazine article about Master Sgt. Sarver, written by Screenwriter Boal, appeared in Playboy Magazine. That story was later adapted by Boal for the screenplay of “The Hurt Locker.” The suit alleges that the film’s makers falsely claim that the characters portrayed in the film are fictional when, in fact, the film’s main character “Will James,” IS Master Sgt. Sarver.

The suit alleges that the movie’s screenwriter and makers decided to cheat Master Sgt. Sarver [a man who has repeatedly risked his life for his country] out of financial participation in the film, and any acknowledgment of his heroic actions in Iraq.  Master Sgt. Sarver only learned of the Appropriation of his identity after the film’s release.

Full press release can be read here.

Miss Prejean was fired from her role as Miss California USA in June of this year, following several months of controversy over her answer at the Miss USA pageant regarding same-sex marriage. Lewis claimed Miss Prejean’s termination was due to a violation of contract.  Miss Prejean’s complaint will refute that allegation, and demonstrate that both the chronology and factual evidence clearly show she lived up to all her contractual obligations, but was fired, harassed and publicly attacked solely due to her religious beliefs. 

Charles S. LiMandri, attorney for Miss Prejean, released the following statement regarding the complaint: 
“Over the past two months we have worked hard to provide overwhelming evidence that Carrie Prejean did not violate her contract with Miss California USA and did not deserve to have her title revoked by Keith Lewis.  We will make the case that her title was taken from her solely because of her support of traditional marriage. Keith Lewis has refused to clear her good name or even to admit any wrongdoing.  Therefore, Carrie Prejean is left with no alternative but to take her case to court where she expects to be fully vindicated.” 

Don Henley makes no effort to hide his political leanings.  In addition to performing at scores of fundraisers, Henley has given about $750,000 to partisan, liberal causes, including $10,000 to Barack Obama and $9,000 to DeVore’s soon-to-be opponent, Barbara Boxer.  Henley also exploits his music to advance a liberal, political agenda. 

Henley’s “Boys of Summer” is no exception.  On the surface, “Boys of Summer” is a wistful look at an old romance, a fling between two kids, now grown, who have moved on with their lives.  But the song also has a clear political message.  Henley says that the second verse of the song-the one with the famous line about seeing “a Dead Head sticker on a Cadillac”-was about the essential failure of Sixties’ politics: “I don’t think we changed a damn thing, frankly….  After all our marching and shouting and screaming didn’t work, we withdrew and became yuppies and got into the Me Decade.” 

DeVore and Hart’s parody turns “Boys of Summer” on its head.  It substitutes Barack Obama for the singer’s love interest and has Henley (and other outspoken celebrity liberals) dreaming wistfully of the time before President Obama’s election: “We will never forget those nights/ We wonder if it was a dream/ Remember how you made us crazy?/ Remember how we made you beam.”  The song asks whether the parties’ naïve love affair can survive the circumstances since, particularly President Obama’s broken promises and failure to deliver on the promised “hope.” 

DeVore and Hart’s parody is not for everybody.  Hart’s vocal performance may not be for anybody.  It may be bad art.  But it’s not copyright infringement.  As Henley’s own lawyer puts it, “[T]he purpose of copyright law is to encourage the production of new, original works….”  But  DeVore and Hart have done nothing to discourage the creation of new, original works.  They have not reduced the value of Henley’s song; they have not made Henley or anybody else less likely to create pop songs in the future.  Copyright law has no legitimate interest here.   

But the First Amendment does.  This country was, in Lincoln’s famous phrase, “conceived in liberty,” and our national constitution contains a very clear protection of every Americans’ right to speak freely.  This protection applies with special importance to political speech.  DeVore and Hart’s parody is core political speech, a creative effort to reach voters with a message.  Don Henley is free to dislike the parody.  Everybody is free to dislike the parody.  But nobody has the right to suppress DeVore’s speech. 

Chris Arledge is a partner of Turner Green LLP, an Orange-County based intellectual property firm.  He represents Chuck DeVore and Justin Hart in the Don Henley lawsuit.  He can be reached at carledge@turnergreen.com.

Understanding that the DailyKos crowd can never be quieted (save for my untimely demise in a speeding vehicle), I do think it important to set forth what we did with the two parody songs I wrote to be sung in style of Don Henley’s works. 

 
I penned “After the Hope of November is Gone” based on Mr. Henley’s “The Boys of Summer” with parodic eye.  One can clearly see my intended skewering of Henley and his ilk’s well known liberalism in the lines: 

We never will forget those nights
We wonder if it was a dream
Remember how you made us crazy?
Remember how we made you beam
Now we do understand what happened to our love. 

That Henley has contributed some $750,000 to Democrats and liberal causes over the years, including $10,000 to Barack Obama and $9,000 to Sen. Barbara Boxer, adds authenticity to the political nature of my ditties.  As the L.A. Daily News reported Friday night, “Henley, a longtime vocal supporter of Democratic causes, has drawn boos from fans in Orange County over the years for making political comments between songs during concerts.”  Indeed.  Henley’s lawsuit shows he’s good at dishing it out, but not so good at taking it.  

Henley’s lawsuit also makes mention of my parody version of “All she wants to do is dance.” This song came out in 1984.  It was written as an attack on President Reagan’s Central American policy, a policy I was soon after to help implement as a Reagan appointee in the Pentagon.  I particularly enjoyed taking Henley’s critique of cluelessness in the face of President Reagan’s policies and turning it into a critique of the left and their global warming policies, thus parodying Henley’s penchant for leftwing activism while at the same time fashioning an insightful ditty on Sen. Barbara Boxer, my 2010 opponent.  

Lastly, I note with interest that the D.C.-based bi-partisan musical group “Capitol Steps” has been building on others’ work by turning familiar songs into biting political commentary since 1981.  They have yet to pay royalties to any artist and, as their songs are political, unlike, for instance, “Weird Al” Yankovic, they rarely secure permission from the artists whose works they build upon. 

Bottom line, we are responding to the Henley/Campbell lawsuit and expect to prevail.  If an elected official running for the U.S. Senate is not allowed to fearlessly engage in parody, then the First Amendment means little.