Slashdot Mirror
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."
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.
Hmm. To a dark place this line of thought will carry us. Great care we must take.
For justice, we must go to Don Corleone
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.
Political speech enjoys higher levels of protection, but misuse of copyrighted works is not a free speech issue. It is a, oh what's the word, copyright issue. You do understand that, in order to work at all, copyright trumps free speech, except in limited circumstances like fair use and parody.
Republicans have a long, sordid history of using music without permissions, they especially love to use songs from artists who are not Republicans. Google 'republicans stealing music.'
This was the first page that came up: http://www.alternet.org/blogs/peek/77309/a_pattern_of_republicans_stealing_music_from_bands_who_don't_like_them/
Here's another: http://www.theinsider.com/news/1264982_Can_the_Republicans_Stop_Stealing_Everybody_s_Music
And another: http://crooksandliars.com/2008/06/14/mccain-caught-stealing-democratic-music
It's pretty amazing how often they do it, and get away with it despite the protests and legal actions of the artists involved. It's the Republican party saying, "We don't have to play by the rules, fuck you!" to artists who disagree with them. Classy.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
When I think of parody the first thing that comes to mind is Weird Al, and I can't really recall any of his songs commenting on the original work itself.
Many of his songs actually do - "This Song Is Just Six Words Long" and "Smells Like Nirvana" both come to mind right off the top of my head.
But that doesn't matter from a legal perspective because Yankovic and his label don't rely on legal definitions of Fair Use for his work. He actually goes out and gets permission from the rights holders before making a parody of their work. So you can't use what he does as an example of what you can do with Fair Use protections for parody works.
Does the "derivative work" function as a substitute for the original work? If it serves a different function, it should be considered fair use.
Set your phasers on "funky"!
Use of Don Henley's well-known music implies that he supports the DeVore, which he clearly does not. In that sense, it is defamatory to Don Henley. Also, there argument that "It is parody because Henley is a liberal" is absurd, they seem to be arguing that it would be unlawful to rip off a well known conservative's music, but it is perfectly ok to rip off a well-known liberal?!? This is the same race that saw Carly Fiorina's "Demonic Sheep" ads? I think it will go down in history as the pinnacle of Repugnantcan douchebaggery, an affront to intellectual conservatives everywhere.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
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.
The truth is that all men having power ought to be mistrusted. James Madison
Check out this link from the summary. It's not a pretty sight.
I am the richest astronaut ever to win the superbowl.
After reading a bit more about this I suprised myself by changing my mind. My first knee-jerk reaction was that the videos were ok because they were parodys/satire.
But basically if this was allowed, you could use any music for any video you make whatsoever, and claim it is a satire/parody. Maybe you are required to insert at least one insult, about a random subject, into the video, so it is a "satire or parody". This would completely defeat copyright and certainly is not a good idea.
However that if Boxer had officially used one of these songs in their own videos (after paying for the rights, as required), somebody parodying the Boxer ad can use a parody version of that same song. I believe this was done by conservatives on some Obama attacks. More to the point here, a joke video about Windows using a Rolling Stones "start it up" parody would be allowed, since that was part of the Windows advertisement, but use of a different Rolling Stones song that Microsoft did not use is not allowed.
No one said that satire is illegal. What was said is that using someone else's copyrighted material without permission as part of the satire is not protected by fair use. Big, BIG difference.
- Using clips of a movie to make fun of that movie = parody = fair use
- Using clips of a movie to make fun of something else entirely = satire = not fair use
You can agree or disagree with the above, but that's where the courts currently stand on the issue.
(As an aside, Twain, et al, didn't use other people's copyrighted works in their satires)
The
Penny Arcade would have had to cut out & scan an ad for a Ford Explorer, then paste it next to a images of Wall Street fat cats, with a subtitle referencing lax financial regulatory systems and failed economic management, then claim that they were also mocking the quality of American-made vehicles.
You had the choice between talking about a redheaded dominatrix and a car analogy, and you went with the car analogy? I know this is Slashdot, but some things are sacred! Like redheads in leather.
The absence of evidence is not evidence of absence. Just because Democrats never get CAUGHT stealing music, doesn't mean they don't steal.
Actually, it's more like: Democrats get whatever they want from their good buddies at the RIAA and get a pass from lefty music artists. The charge never comes up because no lefty musician or music company EVER MAKES IT. (Ya don't eat your own, don't ya know.)
But the moment any Republican uses ANY music by any left-leaning musician, an army of lawyers and Old Media types scramble to find if they "stole" it. That just doesn't happen with Democrats.
Prime example: During the last Presidential election the McCain campaign was accused of "stealing" the song "Barracuda". The problem for the accusers was that the McCain campaign already had a contract with the company that held the rights to that song that allowed them to play it. Yet WEEKS of hay were made from a literal non-story because the original artist didn't like the McCain camp using it, despite them having met the legal requirements for use.
So forgive me if I take your "Republicans steal music" "evidence" with a MOUNTAIN of salt. History has taught me to deeply distrust leftist "news" sources.
Official Heretic from the "Church of Global Warming". Proven right thanks to whistle blowers. AGW = Flat Earth Theory
From the article: "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."
That's quite a dangerous stretch counselor. If that were so, it would follow that usage of copyrighted works would depend on how much the holder's political leanings coincide with the person being mocked.
The absence of evidence is not evidence of absence. Just because Democrats never get CAUGHT stealing music, doesn't mean they don't steal.
Well until you have any actual examples of them stealing music rather than vague claims about how they must be, then your claims might actually carry some weight.
Actually, it's more like: Democrats get whatever they want from their good buddies at the RIAA and get a pass from lefty music artists.
Is this the same RIAA that has a well-known Republican staffer/lobbyist as it's chairman and CEO? And the same RIAA who has made numerous donations to Republican senators and representatives for years? Yeah, let's ignore all that and just pretend that only the Democrats are allies of the RIAA.
Well, you, and the general public at large, might see them as different, legally they are not. If you take a Mickey Mouse comic from way back when, and just copy it with a new word bubble, obviously copyright violation, right? If you draw your own character that looks sort of like Mickey Mouse? That's just as much copyright violation, even if you drew every last pen stroke yourself. Fair use, which includes review and parody, is a defense against copyright violation via derivative work. Penny Arcade got in trouble because drawing Strawberry Shortcake is a copyright violation, and fair use is their only possible defense. However, fair use does not allow for making copies of one person's copyright to parody a third-party. Their own lawyers told them that, and they took it down. That's the law.
Mind you, the law is subject to change. Twenty years ago judges verbally berated Sega and Nintendo lawyers on separate occasions for abuse of copyright law. Nintendo tried to sue Game Genie for allowing owners to modify their game code. The judges said that people are free to enjoy their purchase any way they want, and artists have no right to dictate how their works are enjoyed. This opinion is now scoffed at, and artists very much do somehow have the right to dictate how purchasers of their works are allowed to enjoy them. Sega, on the other hand, like Nintendo, used early early DRM to lock out third party game carts on their consoles. They sued Accolade for copyright violation for cracking the DRM. A judge got very angry with them, calling them monopolists and dismissing with prejudice, saying no law permits them to lock people out of their hardware. Now of course, there is such a law, and nobody bats an eye at locked down systems. Crazy that only 20 years ago the very idea was disgusting, and now you're a madman for objecting.
That may seem off-topic, but both those cases were about derivative works. Game Genie was about the right of the consumer to create their own derivative works, which we're now told we do not have. Though we're told by RIAA/MPAA/TV execs, and might possibly still have that right, if you find a judge who will follow the law. And the Sega case was about the right to reverse engineer for compatibility, which we certainly no longer have. Well, except the DMCA, which outlawed it in the first place, has exceptions for compatibility, but those exemptions to not stop Nintendo, Sony, and Microsoft, from suing anyway. So, while parody defenses are pretty set, so were those rights, and they changed, though perhaps not legally... Precedent is just a suggestion. In the unlikely event that a judge allows wholesale copying of third-party copyright material in unrelated parodies, that's a hidden boon for The Pirate Bay, which would quickly be renamed to The Parody Bay, and totally legal! Just put a quick mockery of your political figure of choice into your torrent description, and the download along side it is protected as a fair use parody! ;)
ASCII stupid question, get a stupid ANSI
Didn't Obama give sweet appointments to a bunch of RIAA lawyers?
http://www.wired.com/threatlevel/2009/04/obama-taps-fift/
That being said, we're veering way off-topic. I maintain my position that both parties usually have dirty hands.
http://blindscribblings.com - Tasty pop-culture in conceptual fashion.
An article about parody videos with music set to lyrics mocking someone, and the first thing you thought of was a comic strip? I immediately thought of Weird Al Yankovic and how screwed he'd be if they're found to be infringing.
He's probably OK, as he does secure the necessary recording rights for the songs (which requires indirect payment to the songwriters through a clearinghouse).
If he then copies the look of the video, he's OK because he can then separately parody the video safely, since the audio portion is already either licensed or covered by a separate parody. Most of his non-original songs are of this double parody variety.
I suspect the main issue in this case was they didn't pay the fee that allows them to record the song. If you do that, any BMI or ASCAP songwriter has zero say over whether you can record "their" song, or perform it in public.
From TFA: "Corynne McSherry, an attorney with the Electronic Frontier Foundation, explains how fair use works: It lets people use a film clip or a paragraph from an article or a piece of music if they are creating commentary or satire." So what I've gathered, unless an attorney with the EFF is an outright liar, the fact that "a parody comments on the work itself; a satire uses the work to comment on something else" is a useless statement to the context of the Downfall situation, and also to these songs, because satire is still covered by fair use.
Weeks of hay? I hadn't even heard of this until now, and I was paying some attention to the 2008 campaigns.
Further, now that I look it up, it doesn't seem to be the case that anyone was saying the McCain campaign stole the song, or even used it illegally; the hay was made over the fact that the artists just didn't agree with his political views, and as such requested that he not use it. Due to our wonderful copyright system, the people who created the song no longer had any sort of control over the actual usage of the song, and as such their request was ignored by the McCain campaign.
Indeed, as far as I can tell none of those "leftist 'news' sources" said or even implied that the McCain campaign used Barracuda illegally; all they cared about was that the band that created that song did not wish for it to be used in that way.
And yet despite this, you somehow managed to completely avoid addressing the three instances of potential Republican music-stealing that the GP actually brought up.
Judging from your signature, this seems to be a consistent pathology in your thinking.
No really!
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.