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January 17, 2018

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Song use draws threat to sue Heller camp

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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