CLARIFICATION
FTR – I, me, myself, IMO always assumed Weird Al paid mechanicals because a) he’s an upstanding guy who is very gracious in his business dealings and b) because he often uses entire compositions and doesn’t change the musical arrangement much. I asked around the office, and everyone pretty much concurs, but it has now sparked a debate that only our IP lawyer will be able to resolve (maybe).
As for a Weird Al*-like* example:
A local radio station, The Edge, occasionally hires sound-alikes for parodies. They’ll cover about 60 seconds or so of a popular, fairly current song, changing the lyrics so that they are making editorial commentary on current events. Ex/ The Proclaimers song “500 Miles” became “500 Malls” about the exhaustive X-mas shopping season.
The purpose and character of the parodies are clear, the use is non-commercial (not being recorded and re-sold), they are short (“amount and substantiality”) and are obviously being used for criticism and commentary.
C K Dexter I thought this thread was started because of the Russian author who is claiming that his book is a “parody” of Harry Potter. If Chubbs is thinking of doing a parody, then I concur whole-heartedly. IP lawyers = artist’s friend.
I’m not a lawyer and all that, but Weird Al can’t be sued because not only does he get permission first (Coolio aside; that lack of communication is why he switched labels), but he credits the original artists. Can’t sue people who use the copyright laws properly.
On my radio program, we do a lot of parody. It falls under the “fair use” aspect of the laws. In short: We’re making fun of something, not claiming it as intellectual property. For example, our parody of Star Wars is Food Wars. Loads of fun, and still up on my audio site http://www.romm.org/audio .
Strictly speaking, Weird Al doesn’t NEED the permission of the original artists, when he does parody songs. He seeks permission because he’s a nice guy who doesn’t want to create any hard feelings. But legally, he didn’t HAVE to ask Michael Jackson’s permission to record “Eat It,” and he didn’t HAVE to ask Kurt Cobain for permission to use the tune of “Smells Like Teen Spirit.” All he had to do was pay them royalties for using their tunes.
If Al had written his own melody, which wasn’t identical to “Beat It,” but which had a similar sound and feel, there’d be nothing Michael Jackson could do about it.
In the same way, when Neil Innes wrote a lot of satirical Beatle-esque songs for “The Rutles,” he didn’t need permission from Lennon and McCartney. As long as he didn’t swipe melodies outright, he was free to write tunes that sounded much like those of the Beatles.
Charmian, I don’t know whether you are correct. Fair use excludes works from the rights of a copyright holder. That means that if you are doing something that is a fair use, you don’t have to do anything. Not pay mechanical royalties. Not work out deal with the copyright holder. Nothing.
Speaking of mechanical licenses, mechanical licenses don’t apply to any derivative works. From the copyright office:
But, you have a good point that a song might be separated out into lyrics and composition for infringement purposes. Frankly, I don’t know what the courts have done. When I researched parodies back in the day, I don’t recall courts ever covering the subject. <shrug> flip a coin, its undecided.
My old research came up with a 9th circuit case (note: 9th cir. is a bit zealous in its protection of Hollywood interests) finding the book “Cat NOT in the Hat!” (about the OJ Simpson trial) is not a parody of Dr. Suess’s book.
As a final note:
The courts have pretty much consistently said that “fair use” is the appropriate mechanism for determining whether a copyright holder can prevent someone else from copying his work. First amendment analysis is generally not appropriate.
This thread has gotten a bit jumbled, but let me make some general responses.
Yes, my point was that parodies are treated under case law: there is no separate body of law that addresses them specifically.
Yes, you can use trademarked products in parodies. The courts have generally allowed this. Even so, I would strongly recommend that you stay away from Disney characters unless you want to spend your life and your fortune in court. Someone can correct me, but as far as I know, Disney has always come out ahead in these suits (whether settled or adjudicated). Other trademark owners have also successfully gone after infringers and won, even if the work involved could be construed as a parody. Selling a parody T-shirt is usually treated differently than a publication doing a parody. The First Amendment is not negligible in this.
Song parodies are a special case, because there is a fixed right in law that allows singers to make recordings of songs whether the originating writers approve or not. Whether lyric changes would constitute infringement is a tricky business because even straight copies often tamper slightly with the originals
I love parodies myself, and I collect as many as I can find. I have a database of over 700 print parodies and I own the vast majority of them. A good parody is a work of art, and often a better piece of criticism than anything academics can do. Of course, bad parodies are some of the worst excrescences on earth.
One other thing on Weird Al - he has a type of parody he calls “Style parodies” where, much like the Rutles example above, he writes original melodies AND lyrics, but in the same style as a given band or genre of music - ie, “Trigger Happy” is a “beach music” song - it is the same style, rythm, beat, and overall feel as a song done by Jan & Dean or early Beach Boys, but it was written in whole by Wierd Al. There are a several of his songs that are clearly parodies of specific bands’ styles - the B-52s(“Mr. Popeil”) and Talking Heads(“Dog Eat Dog”) immediately come to mind - but they can’t even contemplate suing him for ‘sounding’ like them - the lyrics and the music are completely original
It has many other links to legal essays and briefs for the lay-person, as well as essays by the band itself.
Now, the members of Negativland do tend to look at intellectual property with a jaundiced eye, but that’s because they were on the receiving end of a MASSIVE barrage of lawsuits after they released a parody of U2’s “Still Haven’t Found What I’m Looking For”.
It was a landmark case in the topics of fair use and parody, which the members wrote a book about, entitled: “Fair Use: The Story Of The Letter U And The Numeral 2”.
This always annoyed me to a certain extent. “Ganger’s Paradise” is more or less a cover of a Stevie Wonder song; Coolio gets annoted that it was covered by Al, but never gives any credit to the guy who HE was covering.