What is Parody?

Every once in a while, a story emerges, usually involving the use of music in either a humorous, provocative, or even offensive context that is then assumed by many to be an example of fair use in the form of parody. Aside from the fact that parody itself does not automatically guarantee a use would be judged fair in an actual court case — there are several other factors — the word parody itself is frequently used as a catch-all description for a variety of works that are not, in fact, parody.  Most notably this year, the case involving Goldie Blox’s use of the Beastie Boys’  song “Girls,” though ruled in favor of the Beasties*, has left some lingering confusion about the nature of parody.

The other night, my kids showed me this video by an obviously very talented young performer named Jon Cozart. He takes four famous Disney songs based on four famous Disney princess movies and sings a medley of four new narratives expressing his own jaundiced view as to what happens after happily ever after.  They’re funny, he has a great voice, and I’m not surprised this video has over 37 million views; but it isn’t parody even though it calls itself “parody” on YouTube, and I was even tempted to call it parody myself.  (Note that I am using Cozart’s excellent video as an example and am expressing opinions.  There is no case involving his work.)

A parody must lampoon the original work itself. So, merely writing new words to accompany a popular melody, or even riffing on the sounds of the original words, does not make the new work a parody unless the new work directly targets the content and soul of the original.  Thus, Cozart’s rendition of “Under the Sea,” which conveys a narrative in which a mermaid suffers the deprivations of ocean pollution, is a work of social satire and not parody.  In fact, the works of the most famous artist in this genre, Weird Al Yankovic, are largely not parodies either because the original songs are not the targets (or victims) of the joke. For instance, in the early 80s, when Al turned Joan Jett’s “I Love Rock n’ Roll” into a song about ice cream gluttony called “I Love Rocky Road,” he used wordplay and the familiar refrain to create a brand new comic piece, but he did not parody or comment on the mood, attitude, spirit, or content of the original song or its creator(s). This is why, even if it were not Al’s standard M.O., he would have had to pay for a mechanical license to produce the new song as well as a synch license for the video.

This video by producer The Key of Awesome, mocking Lorde’s song and video “Royals” is a far better example of actual parody.  In fact, near as I can tell, this producer primarily makes legit parodies.  The new lyrics (and new visuals) directly mock Lorde, her song, the original video, and even the spirit of the song and its performer. (Sorry, Lorde, nothing personal.)  This is a very different animal than taking the melody of “Royals” and writing lyrics to express something, comic or not, that is external to the original work.  For example, I wrote a few weeks ago about the Westboro Baptist Church borrowing Paul McCartney’s “Hey Jude” to write, perform, and distribute a video of themselves singing an anti-semitic rant called “Hey Jews.” My own kid commented that, offensive or not, the song was probably fair use as a parody, and I had to administer a dope slap. Again, in order for the Westboro Baptists to produce a parody, they would have to rewrite the lyrics to directly mock McCartney’s message to young Julian Lennon, or at least attempt to mock some intrinsic meaning in the original work that, I guess, also expresses how much they hate jews. I have no idea what that would sound like, but that’s what it would have to be to accurately be called a parody.

And that brings us to what I believe is confusing about what happened in the Goldie Blox v Beastie Boys case.  For that video, which was really a commercial, the producers rewrote the lyrics to “Girls.” Had they produced the song as a stand-alone work without the video, one might be able to call it a parody because the original lyrics were misogynistic, and the new lyrics were about female empowerment. But even then, there are a few factors that muddy those waters.

For starters, the original “Girls” is arguably a satire of misogyny, and so parodying that work technically conveys a pro-misogyny message, which was certainly not Goldie Blox’s intended communication. And this notion of an expectation that an audience will understand when a parody is being conveyed is actually relevant, both legally and creatively. As established in the landmark case Leibovitz v Paramount, the parody maker must have a reasonable expectation that a broad segment of the public will get the joke, that the work being targeted needs to be in the contemporary, public consciousness to the extent that the parody itself will be broadly understood. This isn’t simply a legal precedent; there is no point in making a parodic joke for which the intended audience has no frame of reference. “Girls” is a 20-year-old song that doesn’t get a lot of contemporary airplay or use in other media; and it is very probable, therefore, that Goldie Blox’s audience of parents, likely to be in their early to mid-30s, may not have the song present in their consciousness. Thus, that segment of viewers would not be immediately aware that any attempt at parody was at play.

Confusing this aspect even further is the video itself. We see young girls building an elaborate contraption and looking brainy, nothing that conveys mockery of anything at all. So, by experiencing the video in conjunction with the song, but without any knowledge of the original “Girls,” the viewer is completely ignorant of any attempt at parodying anything whatsoever. Rewriting the words to an existing song in order to promote a broader message about girl power, especially for the purpose of promoting a business, might arguably produce a piece of social commentary, but it deviates very far from targeting the content of the original work for the sake of parody.

Even in the age of the Internet, words still have meaning. And just because there are market forces at play that would like to see every form of remix and reuse classified as a fair use, this is no reason to abandon our ability to make literate distinctions among various types of works. It isn’t simply a matter of policy or law, but is a matter of cultural understanding.

*CORRECTION:  Thanks to commenters for jarring my memory.  GoldieBlox settled without a court ruling.  They paid a fine to the Beastie Boys, who donated the money toward some cause related to empowering young girls.

© 2014, David Newhoff. All rights reserved.

Follow IOM on social media:

21 comments

  • You definition seems to be a whole lot more narrow then the judicial definition. Supreme Court says a parody for fair use purposes “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works”.[1]

    Emphasis on “comments on that author’s works” and that it only has to do so in part, ergo a parody doesn’t even have to have the commentary as the sole focus or intent of the work.

    Also worth noting that parody is just one small aspect of fair use. Something use may not be a parody at all, but may be fair use simply because it is a transformative use, which applies to satire. [2]

    [1] https://bulk.resource.org/courts.gov/c/US/510/510.US.569.92-1292.html
    [2] http://fairuse.stanford.edu/overview/fair-use/four-factors/#the_transformative_factor_the_purpose_and_character_of_your_use

    • In Campbell v Acuff-Rose the Supreme Court decided that a commercially-motivated parody was not excluded from the ‘fair use’ exemption, but it did not give carte blanche to anything with a vague flavor of parody. Note in particular footnote 16, which warns that ‘a work with slight parodic element and extensive copying’ will be less likely to qualify as ‘fair use’. That seems a good description of the GoldieBlox ad, which has ‘extensive copying’ of the music, but only a few lines of lyrics which might, ambiguously, be taken as a comment on the Beastie Boys song. It is also worth reading Justice Kennedy’s concluding observations in Campbell. Although Kennedy concurred in the judgment, he warned that future courts ‘should take care to ensure that not just any commercial takeoff is rationalized post facto as a parody.’

      Also note that to qualify as ‘fair use’, any use of copyright material must be made for purposes such as criticism, comment, news reporting, etc, no matter how ‘transformative’ it may be. Parody and satire have been held to be capable of falling within such purposes, but the qualifying purposes cannot be stretched indefinitely without losing all meaning. I do not think it has yet been held that merely to be entertaining would be a qualifying purpose.

      • Thanks for the note, David B. Also, M, keep in mind that I am making an attempt to explain for the sake of general literacy what parody is because the understanding has become rather vague of late. I’m not really making a case as to when one particular parody or another might be judged fair use in a hypothetical dispute. That’s speculation well beyond my qualifications and doesn’t really serve a particular purpose. My only point is that there’s a ton of derivative, humorous works out there, and folks seem to want to use the terms parody and fair use rather bluntly while in reality both are much more nuanced.

  • David B —
    “In Campbell v Acuff-Rose the Supreme Court decided that a commercially-motivated parody was not excluded from the ‘fair use’ exemption, but it did not give carte blanche to anything with a vague flavor of parody.”

    This is just as one would expect. The fundamental rule of fair use is that any use can, under the right circumstances, be fair, but that no use is necessarily fair. That is, fair use is always a case-by-case question, hinging on the facts in the matter. And the only bright line rule of fair use is that there are no bright line rules.

    “Note in particular footnote 16, which warns that ‘a work with slight parodic element and extensive copying’ will be less likely to qualify as ‘fair use’.”

    Of course, ‘less likely’ is not the same thing as ‘never.’ As I said, any use may be fair.

    “Also note that to qualify as ‘fair use’, any use of copyright material must be made for purposes such as criticism, comment, news reporting, etc, no matter how ‘transformative’ it may be.”

    That is an incorrect reading of the statute, though unfortunately a common one.

    Here’s what the statute actually says:
    “[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

    What this actually says is that the fair use of a copyrighted work is not an infringement. It goes on to list four factors which a court must consider in applying section 107. But the language “such as” clearly indicates that the examples given are not an exhaustive list; were it an exhaustive list, the language would have to read “for the purposes of” or some such.

    Parody is arguably criticism or comment, but I would suggest that it is really its own category. The court in Leibovitz agrees: “[T]he statute does not specifically list “parodies” among the categories of potentially “fair” uses….” A specific instance of time shifting might fall under one or more of those, but many instances of time shifting foreseen by the Sony Court as fair would not, such as personal enjoyment. Space shifting, as from the RIAA v. Diamond court would typically not fall under any of those categories. In Sony v. Connectix, it was actually argued that making copies for the purpose of reverse engineering software was not fair because it wasn’t limited to research; the court rejected the entire distinction, merely ran through the usual four factor test, and found that it was fair use.

    And of course, from the Supreme Court in Campbell (internal citation deleted): “The text employs the terms “including” and “such as” in the preamble paragraph to indicate the “illustrative and not limitative” function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.”

    There is a reason why there is a dearth of caselaw discussing the listed uses — they’re basically irrelevant. Everyone knows it, and sticks to the actual working part of the statute: the four factors. Now you know it too.

    David Newhoff–
    “Most notably this year, the case involving Goldie Blox’s use of the Beastie Boys’ song “Girls,” though ruled in favor of the Beasties,”

    My understanding was that the case settled, and that there was no ruling. If there was an actual ruling on the matter, would you mind providing a link to the opinion, if possible?

    “A parody must lampoon the original work itself. So, merely writing new words to accompany a popular melody, or even riffing on the sounds of the original words, does not make the new work a parody unless the new work directly targets the content and soul of the original.”

    No, that’s too narrow. A parody may also lampoon the author, or other works by the author. Again, from the Supreme Court in Campbell:

    “Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”

    The Court goes on to point out that since all four factors are to be considered, even works that have less of a claim to being a parody may successfully claim fair use: “A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.”

    “For that video, which was really a commercial”

    Is that relevant to anything? I suppose it might be helpful to GoldieBlox for the fourth factor, since the Beastie Boys refuse to license their works for use in commercials, which would mean that this use did not interfere with a market for the original. It certainly doesn’t do much to attack the fair use argument.

    “Had they produced the song as a stand-alone work without the video, one might be able to call it a parody because the original lyrics were misogynistic, and the new lyrics were about female empowerment.”

    That’s a serious misunderstanding of fair use, right there. Remember, only the material borrowed from the prior work must be protected by the fair use analysis; new material outside of the scope of the use is not prima facie infringing, and need not be protected by fair use. Just as there is the well-known rule that an infringer cannot claim that he only infringed a little by pointing to the large amount of new material he added, neither can it be claimed that by adding new material, he infringed more.

    If the song were to stand alone as a fair use, albiet still as an advertisement, then adding a video to it is basically irrelevant, unless the video itself also infringes in some way.

    “For starters, the original “Girls” is arguably a satire of misogyny, and so parodying that work technically conveys a pro-misogyny message, which was certainly not Goldie Blox’s intended communication. And this notion of an expectation that an audience will understand when a parody is being conveyed is actually relevant, both legally and creatively. As established in the landmark case Leibovitz v Paramount, the parody maker must have a reasonable expectation that a broad segment of the public will get the joke, that the work being targeted needs to be in the contemporary, public consciousness to the extent that the parody itself will be broadly understood.”

    I think that where you’re getting this is from where Leibovitz says, in the third factor: “Second, ‘the parody must be able to ‘conjure up’ at least enough of the original to make the object of its critical wit recognizable.'”

    If you’re arguing that the original Girls is obscure, this only indicates that GoldieBlox is entitled to take more of it than would usually be expected, in order to really try to make sure that the audience recognizes the target. I think it’s a tough argument to make that a fair use might fail for lack of enough use — I mean, that’s flirting with the laugh test, right there — but you’re also making more out of the court’s language than is really there. Parodies don’t have to actually be good, and there is no requirement for broad understanding. There basically only needs to be an attempt. From Campbell: “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.” Not whether it was actually perceived. Not whether it would reasonably be perceived by most people, or even a large number of people. A parody is no less a parody even if only a tiny number of people get the joke, so long as it is reasonably able to be gotten.

    “is a work of social satire and not parody”

    Of course, satires may also be protected as fair use. It’s a little harder, but there is no bright line distinction in the Supreme Court’s precedents (in fact they caution not to impose one) or the statute.

    “I am making an attempt to explain for the sake of general literacy what parody is because the understanding has become rather vague of late.”

    I agree; for lack of a better, bright-line exception, people have been acting as though fair use can protect anything. We need to reduce copyright a bit to protect the large number of uses that are infringing, but basically inoffensive in the market.

    • Anonymous —

      The Beastie Boys v GB case settled in favor or the Beastie Boys, but the details were not disclosed. GB had to pay a fine, which the Beasties then donated toward some cause related to empowering young women.

      As for the rest, I’m not surprised you’ve focused on fair use in general0; but as stated, I am not attempting to predict the outcomes of hypothetical cases. The only goal is to reiterate a basic understanding of what parody is in contrast to similar forms of expression, knowing that parody is a foundation for a fair use claim. I’m also not surprised you’re seizing the opportunity to make an argument for reducing copyright to “protect a large number of uses that are infringing, but basically inoffensive in the market,” but I could not disagree more. The purpose of excluding parody is that it is a specific form of free speech that comments on the original creator, and we hold that right of expression too valuable to allow the creator to stifle it through copyright. Other forms of use, even for social or political statements, are simply uses and I believe generally demand permission.

    • I agree that the list of “purposes such as…” is not exhaustive, and I didn’t suggest that it was. But unlike you (apparently) I do not think the passage beginning “for purposes such as…” is merely nugatory. It may have be included either to clarify the scope of “fair use” or to limit the kinds of “fair use” which qualify for the exemption. On the first interpretation, an act which is not performed “for purposes such as…” is by implication not a “fair use” at all; on the second interpretation, it may be a “fair use” in common parlance, but nevertheless does not qualify for the exemption. Either way, some purposes must be excluded from the exemption, or the whole passage is nugatory. It might be argued that the passage is indeed strictly nugatory, but that the list of specific purposes (criticism, comment, etc) is given “for the avoidance of doubt”. On this view, the phrase “such as” is equivalent to merely “including”, so that any purpose whatever can qualify for the exemption, but the drafters wished to ensure beyond doubt that these specific purposes were covered. But that would not only be bad drafting, it would be contrary to the ordinary meaning of the phrase “such as”, which implies a degree of similarity or analogy with the things specified. In the case of parody, the Courts have held (at least in passing – I don’t know if the point has ever actually been argued) that it may form a kind of comment or criticism: as the Supreme Court said in Campbell “Parody, like other comment and criticism, may claim fair use”. The Court also said that “The statutory examples of permissible uses provide only general guidance”, but “only general guidance” is not the same as “no guidance at all”, which I think would be the case on your interpretation.

      • Just to add an example to illustrate the point at issue: suppose a non-profit modern dance company stages a short dance piece (say 5 minutes long) using music taken from a much longer musical work (say a 3-hour opera) which is still in copyright. This might pass with flying colors the test of the ‘factors’: it is not for commercial gain, it uses only a small part of the copyrighted work, and it probably has no negative impact on the value of the copyrighted work. But in my view it should clearly not be counted as a ‘fair use’, as the purpose of the use is not even remotely analogous to those listed in the “such as” provision, and it would be a blatant attempt to shirk the necessity of either obtaining permission or paying a fee.

  • Actually it wasn’t ruled on; goldieblox settled the case w/the band. http://www.rollingstone.com/music/news/beastie-boys-settle-lawsuit-over-girls-toy-commercial-20140318

    I believe a similar case is now brewing between the same band and an energy drink company.

    Amazing that the last thing some people think to do is ASK. When asked why they skip this (usually required) step, infringers’ excuses are hilarious. More of them need to have copyright law explained to them by a judge and then hit with money damage awards against them. They could easily avoid the expense and embarrassment by absorbing readily available copyright info, say from copyright.gov’s FAQ pg.

  • David Newhoff–
    “The purpose of excluding parody is that it is a specific form of free speech that comments on the original creator, and we hold that right of expression too valuable to allow the creator to stifle it through copyright. Other forms of use, even for social or political statements, are simply uses and I believe generally demand permission.”

    Yes, fair use — not just for parody — exists in order to prevent the means of copyright from frustrating the ends, i.e. promoting the progress of science. But my point was that just as there are numerous exceptions to copyright now (sections 107 through 122 list numerous exceptions to copyright), we might want to add another in order to reduce misplaced reliance on fair use. While fair use requires fairness, the other exceptions have no such requirement.

    We have limited the copyright on pictorial representations of architectural works, we have a homestyle exception for performances that outright violates our treaty obligations but is much-loved anyway, we allow people to edit movies for content without permission — and there’s a host of other exceptions to boot. They have nothing much to do with how valuable the right of free expression is, they’re just desirable and convenient. We can add another.

    “GB had to pay a fine, which the Beasties then donated toward some cause related to empowering young women.”

    That GoldieBlox paid money doesn’t tell us anything about the merits of their case, just that both sides could agree that that was a preferable outcome to litigation.

    Cindy–
    “Amazing that the last thing some people think to do is ASK.”

    Indeed. However, the costs of licensing, or even the transactional costs associated with asking, can at times be daunting. And as you note, it is not unusual for people to misunderstand the law, which can at times be extremely complex. (In fact, the typical copyright class in law school won’t even bother with parts of the law like section 119; it’s too technical and not considered relevant for anyone but a handful of people)

    We could leave things as-is. But we’ve changed the law before in the face of anticipated difficulties with licensing, and the compulsory licenses in the statute seem to have worked out okay for a long, long time. As I said to David, one response we might adopt to large masses of people failing to get permission is to endorse their behavior and change the statute so that in some cases permission is no longer required.

    • Anonymous, re. GoldieBlox. You’re technically correct, of course, that a settlement does not indicate how a ruling might have been made. I added a correction to the post thanks to you and Cindy. I also made it pretty clear in the post that I’m offering an opinion regarding that case and why I don’t think it’s remotely rational to call what GB produced a parody. That doesn’t mean every judge would agree with me, and nowhere do I presume any would.

  • David B–
    “Either way, some purposes must be excluded from the exemption, or the whole passage is nugatory. It might be argued that the passage is indeed strictly nugatory, but that the list of specific purposes (criticism, comment, etc) is given “for the avoidance of doubt”. On this view, the phrase “such as” is equivalent to merely “including”, so that any purpose whatever can qualify for the exemption, but the drafters wished to ensure beyond doubt that these specific purposes were covered. But that would not only be bad drafting, it would be contrary to the ordinary meaning of the phrase “such as”, which implies a degree of similarity or analogy with the things specified.”

    Well, your reading of it is still a little off-kilter, I think. There have been examples of criticism, comment, news reporting, teaching, scholarship, and research which have been litigated and found not to have been fair uses, e.g. Harper & Row v. Nation Enterprises, which was unfair news reporting. And there have been uses which you didn’t address, such as time shifting or space shifting purely for entertainment, which clearly don’t fall under any of the listed categories. So the listed uses are neither limits on what uses are allowed, nor disallowed.

    As the Supreme Court has said, the listed uses are merely illustrative. Congress thought that the courts, in applying the statute, could use a little help. But they’re in no way definitive, and have never, ever been treated as such. It always comes down to the four factors. A use which satisfies the four factor test (though all or even a majority of factors are not required) is going to be found to be fair. A use which doesn’t is going to be found not to be. That’s how it’s been for coming up on 40 years.

    The categories may offer guidance, but they don’t have to themselves have legal effect in order to do so. The courts frequently refer to all sorts of non-binding materials in order to help them interpret and apply the law. In fact, let’s take a look at some of the House Report that accompanied the 1976 Act now:

    “The examples enumerated at page 24 of the Register’s 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances: ‘quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.’

    Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: ‘(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.'”

    And what do we see? We see that the examples “give some idea” of what a court “might regard as fair use under the circumstances” but that ultimately, “each case raising the question must be decided on its own facts” by running through the four factor analysis.

    Anything else of interest? Yes: “For example, the reference to fair use ‘by reproduction in copies or phonorecords or by any other means’ is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use.”

    Or how about: “However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.”

    Again and again, we see that the motto of fair use is basically Semper Gumby — Always Flexible. You have been denying this, trying to shoehorn it into a very very narrow range of acceptable uses indeed, and either ignoring the four factor analysis which has consistently been the heart of fair use, or assuming that not only must a use fall within the handful of types listed, but it must then also pass the four factor test, which again is to deny the reality of the statute and the caselaw interpreting and applying it.

    “Just to add an example to illustrate the point at issue: suppose a non-profit modern dance company stages a short dance piece (say 5 minutes long) using music taken from a much longer musical work (say a 3-hour opera) which is still in copyright. This might pass with flying colors the test of the ‘factors’: it is not for commercial gain, it uses only a small part of the copyrighted work, and it probably has no negative impact on the value of the copyrighted work. But in my view it should clearly not be counted as a ‘fair use’, as the purpose of the use is not even remotely analogous to those listed in the “such as” provision, and it would be a blatant attempt to shirk the necessity of either obtaining permission or paying a fee.”

    I think that it wouldn’t pass the four factor test; it is iffy on the first, fails the second, may or may not succeed on the third (substantiality matters — if the five minutes are the meat of the 3 hour piece, that it’s only 1/36th of the work may not save it), and if licensing is available, it will probably fail on the fourth.

    But if it did somehow pass the four factor analysis — which again, note, doesn’t require success on all the factors, or even a majority of them (time and space shifting only succeed on one, with a second iffy) — it would be noninfringing. No court in the country would find that it wasn’t a fair use because it wasn’t news reporting or some other such nonsense.

    David Newhoff–
    “You’re technically correct, of course”

    And we all know what they say about that: https://www.youtube.com/watch?v=hou0lU8WMgo

    “I don’t think it’s remotely rational to call what GB produced a parody.”

    That’s what they said about Leibovitz. The parallels are just too similar; my initial reaction was that GoldieBlox was infringing, but after considering Leibovitz, I changed my mind and now think that they were probably engaged in a fair use. Of course, I also think that their advertising agency needs to be hit over the head with the biggest, heaviest block for getting their client into trouble.

    • Anonymous, there are some of us who are not convinced that “getting into trouble” wasn’t part of the GoldieBlox strategy. Either way, it’s a dumb move from a marketing perspective; and I’d say that even if I didn’t care about copyright. The whole mess is a bit hard to fathom, frankly, but we are certainly agreed that whoever was advising GB on that “campaign” needs a head thumping.

      I disagree that their case is substantively similar to Leibovitz, though. I believe the court ruled correctly in Leibovitz because the poster itself directly lampooned the original photograph, and although it was a marketing tool, it was also arguably an extension of the film, which is itself a work of both parody and satire. I know I’ve made this argument before, but the whole enterprise of the Naked Gun franchise was in the business of mocking contemporary culture among other things. Plus, Leibovitz’s photo was very much in the public consciousness; it got a lot of attention at the time it was published and was contemporaneous with the release of the film. I think the court was wise in its ruling and showed a sensitivity to the nature of the derivative work.

      With GoldieBlox, though, I will argue that there is a substantial disconnect between the holistic message and purpose of the video and their initial claim of parody of the song as a component of that video. I won’t repeat what I already wrote in the post, but I will add that initial shares of that video by friends on Facebook mentioned liking it with no apparent awareness that the Beastie Boys were even associated, let alone expressed a sense that there was a parody in the message. This is somewhat significant inasmuch as most of my friends are fellow Bard College grads from the 80s and were contemporaries of Adam Yauch when he was a student there. (I’ll add for those who don’t know that Bard is a tiny college and was even tinier in the 80s.) This evidence is only anecdotal, of course, but I really think it’s a stretch to argue that a significant portion of GB’s intended audience was aware of even a hint of parody in the video released with “Girls” as the track. This is part of why I suspect they may have been trying to draw the foul as a marketing gimmick.

      And of course there is the somewhat subjective question in comparing these cases as to what “portion of the original” had been used. Did the movie poster use Leibovitz’s work in the same sense that a rewritten song uses an original score? Perhaps. It’s an interesting question. Did Paramount borrow the equivalent of a photographer’s “score” in form of composition, subject matter, lighting, staging; and then change the “words” from Demi Moore to Leslie Neilsen? I would say, in this case, yes, and that Paramount used the portion of the original that was necessary to produce a successful work of parody, but I would also want to be careful about giving photographers too much control in this regard. Using a musical score is generally unambiguous in contrast to using similar photographic elements to make an image. All of which is to say that I would rather continue to see these conflicts resolved on a case-by-case basis rather than simply weaken copyright in order to sand down the rough edges to make all these derivatives “easier.” If nothing else, these questions would cease to matter and the world would be less interesting.

  • David Newhoff–
    “Anonymous, there are some of us who are not convinced that ‘getting into trouble’ wasn’t part of the GoldieBlox strategy.”

    I’m prepared to take them at their word, lacking any evidence to the contrary. Of course, if it wasn’t really a parody, I’d apply Hanlon’s razor: Wrongdoing is more likely to be caused by stupidity than by malice. Then I’d suspect that someone just screwed up and that there was a general belief at GoldieBlox that they had a license, and then they scrambled for a way out when they discovered, to their horror, that they did not.

    “I will add that initial shares of that video by friends on Facebook mentioned liking it with no apparent awareness that the Beastie Boys were even associated, let alone expressed a sense that there was a parody in the message”

    Again, Campbell tells us that parody doesn’t have to actually be perceived, but only that it reasonably could be. The standard anticipates that audiences might not get the joke. Parodists aren’t required to be good at it.

    “I would say, in this case, yes, and that Paramount used the portion of the original that was necessary to produce a successful work of parody”

    Again, not the correct standard. Campbell points out that it can be acceptable to take more than what is necessary, provided that it is still reasonable. Parodists don’t have to cut what they take down to the bone.

    “All of which is to say that I would rather continue to see these conflicts resolved on a case-by-case basis rather than simply weaken copyright in order to sand down the rough edges to make all these derivatives “easier.” If nothing else, these questions would cease to matter and the world would be less interesting.”

    I think I should clarify my position.

    I like fair use, and in particular, I like the catch-all, case-by-case nature of it. I don’t want to see fair use turned into a collection of specific types of uses, like David B thinks it is, not even if the list of uses were increased, which is something that people who don’t quite get fair use sometimes wish for.

    I think that there is a problem with the transactional costs of licensing, although really a lot more of that has to do with issues that didn’t arise here, such as lack of a strict system of formalities, so as to reduce the need for the drudgery of copyright searches; the information would already be gathered together by the rightsholders who have a strong interest in seeing it gathered together accurately. That being said, compulsory licenses do work sometimes, there’s no need to get rid of the ones that we have now (as they do work), and we might want to expand their use here or there, but I’m not really a fan of trying to use that model as a solution for everything.

    I also think that there’s a lot of currently infringing behavior that ought to just be made legal and non-infringing, because it is inappropriate to make huge swathes of the populace lawbreakers, and impractical, if not wrong, to try to get them to change their behavior. A lot of fair uses at the individual level would likely get roped into this — things like timeshifting or spaceshifting would probably not need to be fair uses. Most of the psuedo parodies you were commenting on would probably fall into this category, mutatis mutandis.

    But I have no interest in a new exception that would protect GoldieBlox in this case; while not every parodist (or would-be-but-not-really parodist) would need to navigate the treacherous and unpredictable waters of fair use, I’m not interested in giving GoldieBlox a hand. Had it not settled, I’d say let them argue it in the normal way, and maybe they’ll win, and maybe they’ll lose.

    So I’d agree that we should preserve fair use, but I hope you’ll agree with me that we should not require all unauthorized uses to be fair; there is a place for unfair, yet useful, statutory exceptions. We’ve got loads of them now, and there is room for at least a few more before we risk the world becoming less interesting.

    • Do you advise and/or practice in the area of intellectual property, anon?

      Re GoldieBrokes, it’s hard NOT to think their whole situation was contrived. I feel it’s much more than what I’ll say, but the very least it was a calculated publicity stunt.
      ..The fact they filed a lawsuit against beasties (unprovoked) within HOURS tells me they had it waiting on the wings. That they advertised their product with Beastie Boys in the videos title. Many other things including being a freshly minted startup, yet so willing to instigate a very likey long and drawn out and time consuming and very expensive legal battle.
      Add in the last will and testament, the Google lawyers, the superbowl contest all add up to a garbage can behind a sushi restaurant (it smells fishy, to say the least).

      • There’s no question that the whole thing reeks pretty badly and has more than a few suspicious elements, but I won’t repeat all that. GodlieBlox settled, which was the only smart move, if Debbie Sterling didn’t want both her personal and her corporate brand to be all about a lawsuit.

        Anonymous –
        “I also think that there’s a lot of currently infringing behavior that ought to just be made legal and non-infringing, because it is inappropriate to make huge swathes of the populace lawbreakers, and impractical, if not wrong, to try to get them to change their behavior.”

        I guess I fail to see where there’s much of a problem in the context of this discussion Jon Cozart did some great work with IP belonging to the entity some believe to be the Dark Lord of the Sith with regard to copyright protection. He’s fine, and we get to enjoy his humor and talent. I don’t know the specifics of YT’s broad music licenses that cover individuals using their service to distribute derivatives and covers, but that seems like the right kind of solution to “allow individual infringements,” as you might put it, but to have the major profiting entity pay rights holders on a similar principle to a venue paying for an ASCAP license.

        If you meant to be talking about piracy, that’s another matter that has nothing to do with derivative works, parodies, or fair uses.

  • AudioNomics–
    “Do you advise and/or practice in the area of intellectual property, anon?”

    I don’t like to call it intellectual property; that’s a misleading and uninformative term. I focus on copyright and trademark, though I’ve done other work as well to pay the bills.

    David Newhoff–
    “I guess I fail to see where there’s much of a problem in the context of this discussion”

    Well, you started out saying that a lot of things are claimed to be parodies and fair uses, when they are not. I agree, but just because something is not a parody, or even not a fair use, doesn’t mean that it ought to be infringing. If there were other reliable forms of protection from infringement that many of the people making these incorrect claims could use instead, you’d see fewer alleged-but-not-really parodies. Problem solved!

    “I don’t know the specifics of YT’s broad music licenses that cover individuals using their service to distribute derivatives and covers, but that seems like the right kind of solution to “allow individual infringements,” as you might put it, but to have the major profiting entity pay rights holders on a similar principle to a venue paying for an ASCAP license.”

    Well, while that is certainly an option, I’m a little surprised to see you suggest something that would only result in YouTube growing in popularity, since only relatively large services such as it could provide such protection.

    I’d just as soon see a statutory exception that protects users directly, where there is no profiting entity. Not every use requires monetization, but only using blanket licenses (which would have to be compulsory in order to work, mind you) pushes in that direction.

    “If you meant to be talking about piracy, that’s another matter that has nothing to do with derivative works, parodies, or fair uses.”

    Aside from fair uses, they’re all just different kinds of infringement.

  • The point is well-taken and I myself am confused. Every year, around the Christmas season, I make available as a free download, a Spike Jones-like take on Winter Wonderland but chew my nails until I take it down. To me, it doesn’t resemble anything like a re-use of the tune and I don’t do it for profit. Still I worry.

  • “This is why, even if it were not Al’s standard M.O., he would have had to pay for a mechanical license to produce the new song as well as a synch license for the video.” I thought parodies recorded and sold digitally or on CD (etc.) did have to pay mechanical royalties to the music publisher of the original composition (unless otherwise negotiated withe the music publisher of the original work) and that what “fair use” allowed was for the parodist to release their derivative work without the prior approval of the music publisher of the original work.

    • Combatjazz, I’m not quite following the question, but that’s probably my fault. Suffice to say Weird Al has always, to my knowledge, sought permission and paid appropriate license fees for his derivative works. My only point was that the majority of his works are not parodies and he probably would have had to get licenses even if it were not his choice to approach business in that manner. I brought him up just because he’s so well known in this category and a contemporary Weird Al might assume similar works would automatically be fair use.

  • Pingback: Fair Use Isn’t “Dare Use” - The Illusion of MoreThe Illusion of More

Join the discussion.