It is an American tradition to poke fun at, criticize, and imitate cultural and political icons. However, that tradition could get you sued.
Still, 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. Courts go through four steps to determine if a new work based on an existing copyright offers social commentary or is solely for financial gain. This process includes the:
- Purpose and character of the work
- Nature of the work
- Amount and substantiality of the portion used in new work
- Effect of the use upon the potential market for or value of the copyrighted work
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.
The Case of 2 Live Crew and Pretty Woman
The leading case on fair use as it pertains to musical parody is Campbell v. Acuff-Rose Music. It put rapper 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 was 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 work's value 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 rights. 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, Weird Al Yankovic could probably use a free speech defense if he wanted to. 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.
Use That Clearly is Not Fair
One action that does not pass muster under any test is using an entirely original work to create 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.