Parody and Satire Videos, Which Is Fair Use?

Hugh Pickens writes "Ben Sheffner writes that both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign 'parody' videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material. The motions focus largely on one issue: whether the videos, which use the compositions 'The Boys of Summer' and 'All She Wants to do is Dance,' are 'parodies,' and thus likely fair uses, or, rather, unprivileged 'satires.' The Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), said that a parody comments on the work itself; a satire uses the work to comment on something else, so for Henley, this is a simple case: DeVore's videos do not comment on Henley's songs but use Henley's songs to mock Boxer. DeVore argues that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and asserts that the campaign chose to use Henley's songs for precisely that reason. 'DeVore's videos target Henley only in the loosest sense,' writes Sheffner, 'and his brief's arguments ... sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).' The case also bears directly on the recent removal of the 'Downfall' clips from YouTube where many journalists have almost automatically labeled the removed videos 'parodies' while the vast majority aren't, says Sheffner."

Comments

I thought it was pretty simple

[Anonymous Coward]

Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.

Re:I thought it was pretty simple

[Jahava]

Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.

Weird Al actually parodies the song itself, so he could talk over it karaoke-style if he wanted to. He's probably re-recording it because it gives his parody a more professional polish and gives him some musical creative freedom. He really doesn't have to do that in order to be parodying the song. I also heard in an interview with him on NPR that, even then, he still seeks permission from every artist he parodies just to avoid any potential legal conflicts (citation needed).

As I understand it, however, even if you re-record someone's music, it's still subject to copyright. The first case that comes to mind is the Coldplay vs. Joe Satriani lawsuit, where Joe alleged that Coldplay stole some of the melody from one of his songs. In this case, even though Coldplay clearly physically played the music, it was still potentially subject to copyright.

Re:Political speach

[elnyka]

I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.

You are confusing freedom of speech (politically motivated and otherwise) with fair use. Imagine for example (and just for shits and giggles) that during the last presidential elections, the Republican party decides to make a satire of Obama at the tunes of, say, one of Michael Jackson's songs (say, "Beat It".) You could alter the roles with the Democratic party making a satire of McCain/Palin (as well as changing the name of the artist and type of art being used) but the essence is the same - a satire and form of political speech using copyrighted material without parodying the copyrighted material herein used.

It would be legally reasonable that the Jackson's camp would be entitled for monetary fees due to the usage of those songs for purposes other than parodying the song and the artist. The law would recognize the artist' claim (which should not be construed as an attack to freedom of speech.)

As for the analogy with the removal of the Hitler parody videos, I'm sad to see them go, but the law is clear in that satires are not protected in the same way parodies are (wrt of using copyrighted material). None of this should be construed either as an attack to freedom of speech in the form of satire or parody.

Unfortunately, the law is (or seems to be) clear on this. I hope that someday (sooner I hope) the law gets amended so that satires done for non-commercial purposes get the same protection wrt copyrighted materials (at least so that we can all enjoy Hitler going at it for lolcatz sake).

Re:Republicans stealing music again? I'm shocked.

[Hognoxious]

Free speech is about being able to get your message out against the government. To say that "copyright trumps free speech" is exactly wrong.

They are two completely different issues.

Mock the king[1] all you want - but do it in your own words, not mine[2] - else you're just as much of a leecher as he is.

[1] of course he won't understand anyway, unless ye doeth itt iynn ye Germannical tongue.
[2] unless I say so, in which case pay up.

Re:Legal "satire" vs. literary "satire"?

[Attila Dimedici]

Satire is perfectly legal. What the summary is saying is that you cannot repackage someone else's copyrighted works in a satire against a third party.
Of course both songs were written and recorded over 20 years ago, they should both be in the public domain by now if copyright had a reasonable duration (Ok I would consider it reasonable if their copyright expired in 2012).
Personally, I think this case is a perfect example of why copyright should be shorter. These songs sum up the message that DeVore wants to convey about Barbara Boxer and our culture would be much richer if such songs could be used for the purpose intended here.