Lovers of offbeat music and hard-core rap would probably never use the names "Weird Al Yankovic" and "2 Live Crew" in the same sentence. Yet, they have something very important in common. The law protects their use of other people's musical works. The reason is that courts consider both 2 Live Crew's rap combined with pop music riffs and Weird Al's combination of everything... to be parodies, which are protected under fair use doctrine.
Defining Fair Use
It is an American tradition to poke fun at, criticize and imitate cultural and political icons. However, that tradition could get you sued. There is a defense in copyright cases called "fair use." Section 107 The Copyright Act of 1976 outlines what a court has to consider when determining if something is fair use:
1) Purpose and character of the work
2) Nature of the work
3) Amount and substantiality of the portion used in new work
4) Effect of the use upon the potential market for or value of the copyrighted work
What this means is courts go through four steps, the first of which is to look at whether the creator of the new work did it as social commentary or financial gain. Next, they look at whether it is parody, satire, criticism and if that purpose is obvious in the content. A judge will also consider how much of the original work is included, and whether the will hurt the present or future sales of the old work.
2 Live Crew Remixes Pretty Woman
The leading case on fair use as it pertains to musical parody is Campbell v. Acuff-Rose Music. It put Luther "Luke" Campbell against Roy Orbison's record label over a bawdy 2 Live Crew remake of the classic "Oh, Pretty Woman."
Campbell asked the record label for permission, but were refused. They remade the song anyway, giving credit to Orbison and the record label. The label sued, and the case made it to the Supreme Court. The Court compared the song to the original before applying the four steps. The justices decided that the 2 Live Crew version "commented on" the earlier song and seemed to criticize it. They said that part of the content, along with the original rap lyrics, parodied the Orbison song. The court reached a unanimous decision that parodies fell under the fair use defense.
The First Amendment Could Free Weird Al's Speech
The First Amendment is often used to defend against copyright violations. Artists argue that parody falls within the right to free speech. When analyzing this defense, courts weigh the value of the work as social criticism against it being construed as entertainment. They will also look at the interest in encouraging social debate against the copyright owner's right. If the work is more on the "entertainment" end of the spectrum, then the defense is more likely to fail.
While his work certainly qualifies as parody, if he wanted to Weird Al Yankovic could probably use a free speech defense. Despite having made a career out of parody that is for personal financial gain, he has not been sued for his antics. It is also clearly meant to be satirical social commentary, which would pass the First Amendment test.
Most of the time, Yankovic avoids these issues by simply asking the original artists for permission. He often gets it, as many artists see his parodies as a type of backhanded compliment. The only person known to say no to him recently has been James Blunt, albeit through his record label. Yankovic wanted to turn "You're Beautiful" into "You're Pitiful."
Use That Clearly is Not Fair
One action that does not pass muster under any test is using an entire original work in the creation of another. This was the conclusion in a New York district court decision involving Walt Disney productions and an adult film company. Disney sued for copyright infringement when the company used the entire "Mickey Mouse March" during a scene depicting sexual intercourse. The court determined that using an entire work is not fair use. It also said that the use was purely for financial gain and had no artistic value or value as social commentary. Therefore, it could not fall under the parody defense.
The Limits of the Law
Essentially, there are three ways to avoid or defend yourself against a copyright infringement suit if you are using someone else material: ask for permission, prove that your work falls under First Amendment free speech protection, or show that it is fair use. One of the ways to use the fair use defense is to show that your work is a parody or satirical in nature.
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