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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."
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.
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).
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.
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.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
It's not quite so clear as far as accusations of "stealing" goes. There is something called compulsive licensing (for example, a radio station playing a music does not have to individually seek permission of the artist; it just has to pay a rate set by law). So, by law, anyone can play the music publicly as long as they pay the license fee set by law, no individualized permission from artists needed (and given the compulsive nature of this licensing, I doubt they can revoke this congress-granted permission; Lessig talks about this as being a case where Congress balanced the rights of copyright holders with public good).
Especially in the McCain campaign case, you will read about the artists returning the license fee—that's because McCain campaign played the music legally and paid the legally set license fee, as required by law. The artists can refuse the fee as a publicity thing if they want, but that doesn't change the fact that McCain campaign fulfilled all its obligations under the law.
Of course, why they would want to promote artists whose political views diverge so far from conservative views is baffling to me, but in any case, the only sense in which the campaign "stole music" is in the sense in which McCain campaign didn't seek permission that they didn't have to seek under the current law (but some people, like Weird Al, do seek such permission even if he doesn't have to, so you could argue it as a matter of courtesy—but not as a matter of law, as "stealing" implies).
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
Let me Google that for you.
In your defense, I did misspell it. It's "compulsory licensing", not "compulsive licensing". It's a well-established legal practice (it dates from late 19th and early 20th century, when faithful reproduction of a work became easy with radios, etc.).
Read Lessig's Free Culture, if you want to inform yourself properly. He'll explain it better than I can anyway.
Oh, right. Since you can't use Google, here's the link to Free Culture (he has a PDF there).
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