Suppose artist A records a song. Suppose artist B infringes on A’s copyright and records a very similar sounding song. B is aware that he is infringing, but releases his song anyway without permission. Suppose artist C, unaware of the fact that B’s version is a rip-off records a parody of B’s song. After this, A sues B and wins damages. What is the legal status of the parody? Parodies are generally protected from copyright suits, right? But since the parody is of something that infringes on somebody elses copyright, is C possibly liable for damages to A? Is B liable for damages to A on behalf of C?
Well, it would all depend on a lot of factors, but if C is doing a parody of B, C is protected; it’d be the same thing as if C were doing a parody of A.
But, since this is a song parody, C has to pay licensing fees to the copyright holder. Presumable, C would have paid the royalties to B before the infringement suit is complete. Afterwards, it would depend on how the court rules, but most likely C would pay any additional royalties to A, either directly or by paying B, who would have to turn to money over to A.
Assuming C pays the licensing fees, though, he is not liable for infringement.
That’s a new one on me. Why does that fact that it’s a song make it different than any other parody? Does that mean that Weird Al Yankovic has been paying out the wazoo to Michael Jackson, et al?
I think that what Chuck is saying is that songwriters must be paid royalties whenever their songs are recorded or played commercially. This is entirely separate from the issue of whether or not coverers or parodists need to get permission to record the song in the first place, which, technically, they don’t.
So, yes, whenever Weird Al records a Michael Jackson song, Michael Jackson gets paid royalties. Even if the words are changed, the underlying tune is covered under copyright.
This is the reason for much discord in bands over time. The songwriters have an extra and very lucrative source of income that their other bandmates don’t.
CookingWithGas, the difference is that to perform a song in public, you need to pay the ASCAP fees to the songwriter.
Essentially, with a song parody, you’re singing the tune of the actual song, which is copyrighted. It’s the same as if you played the song as an instrumental: to perform it in public or on record, you need to pay the licensing fees.
If you’re just writing lyrics and saying “Sung to the tune of,” then you are in the clear (Mad Magazine’s contribution to copyright law: Berlin v. E.C. Publications, Inc.).
Campbell vs. Acuff-Rose determined that you could do a parody of a song without permission, but did not rule on the royalty issue, and since 2Live Crew paid royalties to Acuff-Rose (who refused them), it was not a point of contention. Indeed, at the time, the Capitol Steps did an amicus brief and explained that they indeed paid ASCAP fees for the use of the songs they parody, but, since their work was topical, could not take the time to get permissions.
Weird Al does ask permission, but that’s just as a courtesy, and he is required to pay royalties to the original songwriters.
Technically, the payment of royalties to a song doesn’t go to the songwriter but to the publishing firm with which the songwriter is associated. Usually, these are one and the same but a publishing company is an asset that can be bought or sold like any other asset. (Michael Jackson owns the publishing rights to most of the Beatles’ songs, but Paul McCartney owns Buddy Holly’s catalog along with many others.)
This doesn’t change the underlying principle, because all publishing contracts in all media are actually licensing agreements covering the assignments of rights to royalties and other considerations.
That’s what organizations like BMI and ASCAP do: they calculate royalties owed based on performance. Each publishing firm is aligned with one or the other in the U.S.
To be even more technical, technically, the performance royalties are supposed to go to the songwriter herself. However, in most cases, for various reasons, songwriters assign their royalty rights to a company created solely for the purpose of receiving that songwriter’s royalties. Often a single songwriter will create multiple such “publishers.”
Total hijack, but I’ve been wondering: Does Weird Al ask permission of the songwriter/band, or of the copyright holder in the (common?) case that the copyrights are held by a recording studio?
The record label, if at all, owns the copyright in the sound recording. The copyright in the composition is rarely, if ever, held by the recording studio; it is held by the person who actually composed the work. The performers hold no copyrights at all.
It is the holder of the copyright in the composition who is owed royalties. I’m sure Yankovic asks the composer, not the performers or the record label.
He has to ask the owner of the song rights for permission to avoid the hassle of the court’s whim. Note that the court could rule against the parody writer for a number of reasons in this explanation. Weird Al usually uses a lot of a song in his parodies, the entire melody and similar words. Some of his parodies are very close sounding to the originals. The reason Coolio couldn’t sue Weird Al is because his record company (who owned the song rights) gave permission. It seems Weird Al and JibJab got called on the carpet last year for not asking.
I don’t know how you are reading the case referenced in that cite, but in my reading it doesn’t say anything like that at all.
And neither does the article’s conclusion:
Remember, anyone can sue for anything at any time. That does not mean that the suit has any merit. Nor does it mean that the legal presumption of fair use for parodies is not standard law. It just means that some people will sue without cause. Weird Al does not have to ask permission, legally.
As mentioned before, Weird Al always asks. The author of this article is just using Weird Al as a comparison. Weird Al was never sent to court over his song parodies.
(The jist of the JibJab case, as far as I can recall: In 2004, JibJab Media, a company which creates online cartoons, produced and distributed on their website a very popular election satire depicting George W. Bush and John Kerry mocking each other to the tune of This Land is Your Land. The copyright holders of this song threatened to sue over the unauthorized use of the music and some of the original lyrics from the song. However, a group called the Electronic Freedom Foundation discovered a self-published Woody Guthrie songbook which featured the song dated 1940. Since the copyright to this book was never renewed, the song, they determined, was in the public domain. JibJab decided anyway to donate some money to the Woody Guthrie Foundation and give information about the original song in agreement with the copyright holders.)