The purpose of parody in fair use copyright laws?

[BrandonR]

What’s the reason that our copyright/fair use founding fathers decided that parody should be allowed? Did they just have a sense of humor or is there some underlying legal precedent I’m missing?

[Sage_Rat]

The goal of copyright is to encourage creativity through providing an apparatus to make sure you can profit from your creativity. A parody still utilizes creativity, and thus is protected.

[Sage_Rat]

Parody also is a different genre, so it doesn’t steal market share from the original.

[Sonia_Montdore]

In the US, the right to publish parodies was established when Irving Berlin, Richard Rodgers and several other songwriters sued Mad Magazine in the 1960s for featuring parody lyrics to be sung to the songwriters’ tunes. The case was known as Irving Berlin et al. v. E.C. Publications, Inc. The songwriters lost; the courts upheld the magazine’s right to publish paraody. More info here: http://ccnmtl.columbia.edu/projects/law/library/cases/case_berlin_ec.html

[Tyrrell_McAllister]

@Sonia Montdore

In the US, the right to publish parodies was established when Irving Berlin, Richard Rodgers and several other songwriters sued Mad Magazine in the 1960s for featuring parody lyrics to be sung to the songwriters’ tunes. The case was known as Irving Berlin et al. v. E.C. Publications, Inc. The songwriters lost; the courts upheld the magazine’s right to publish paraody. More info here: http://ccnmtl.columbia.edu/projects/law/library/cases/case_berlin_ec.html

Wait, so I can’t write a song “to be sung to the tune of” a protected song unless my song is parody?

Suppose I write

la la la la la la,
la la la la la la,
la la la la la la la,
la la la la la la.

(To be sung to the tune of “Happy Birthday to You”)

Did I violate copywrite just by writing this, even though I didn’t actually perform it?

[Exapno_Mapcase]

And our founding fathers did no such thing. Fair use itself was a concept that built up slowly through a variety of court cases and was not codified in the copyright law until the 1976 Copyright Act, IIRC. Parody is a word to be found nowhere in the Copyright Act. It is protected solely because the courts have ruled it to be protected.

Tyrrell McAllister, it is the expression of creativity that makes a parody protected. The lack of creativity in your work would not rise to that standard.

What’s the dividing line? Ask a court.

And for the inevitable “what’s fair use around here” question, here’s a good summary that covers what we do on the Dope:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

[RealityChuck]

I think the parody exemption was established long before the Mad Magazine case (after all, Mad was parodying things for almost a decade before the songbook came out), which established the right to parody* songs* (songs are treated differently than other works: essentially, there is no fair use). Mad was in a strong position because they did not publish the song lyrics or music, and merely suggested that the poem/lyrics they published could be sung to an existing song. If Mad had recorded the songs, there would have been no parody exemption (e.g., the Capitol Steps, which performs song parodies in the same way that Mad published them, must pay standard royalties to perform and record the songs with their new lyrics).

If ASCAP would have won, it would mean that anyone who wrote a song could lay claim to its rhyme and rhythm scheme. Using that principle, Billy Joel could sue anyone who wrote a limerick, since “Piano Man” uses that rhyme and rhythm. The ruling wasn’t all that much a surprise – even the lower court allowed most of the songs involved (IIRC, the said that only one was close enough to the original to be considered an infringement; the Supreme Court just expanded the ruling to include that song and, by extension, all songs – and made it apply as the law of the land). But this only applies to publishing the lyrics, not recording or singing them.

Actually, there is no mention of a parody exemption in the copyright law, but it does say the purpose of the copying needs to be considered, and parody has traditionally been allowed. The thinking is that, in order to parody something, you have to imitate it; if parody were not fair use, there would be no parody.

[RealityChuck]

@Tyrrell McAllister

Did I violate copywrite just by writing this, even though I didn’t actually perform it?

No. As I said, no one can lay claim to a rhyme and rhythm scheme. As long as you don’t perform it, you are fine.

[Tyrrell_McAllister]

@Exapno Mapcase

Tyrrell McAllister, it is the expression of creativity that makes a parody protected. The lack of creativity in your work would not rise to that standard.

So you’re saying I did violate copywrite? Should the mods be alerted?

[Tyrrell_McAllister]

Gah. Sorry for repeatedly writing “copywrite” for copyright.

[Tyrrell_McAllister]

@RealityChuck

No. As I said, no one can lay claim to a rhyme and rhythm scheme. As long as you don’t perform it, you are fine.

But my song shares not only the rhyme and rhythm scheme. It also shares the same tune, though I have only indicated the tune indirectly.

[Gfactor]

@RealityChuck

I think the parody exemption was established long before the Mad Magazine case

Surpisingly, no. William Patry, in The Fair Use Privilege in Copyright Law identifies *Loew’s v. Columbia Broadcasting * (1955) as the seminal case. It involved Jack Benny’s parody of Gaslight, but Benny lost that case. The first Supreme Court to recognize parody as fair use was Campbell v. Acuff-Rose (1994):

Here is an overlarge chunk of that opinion, which talks all about parody as fair use, and its purpose:

This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Benny v. Loew’s Inc., 239 F.2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U.S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under 107. See, e.g., Fisher v. Dees, 794 F.2d 432 (CA9 1986) (“When Sonny Sniffs Glue,” a parody of “When Sunny Gets Blue,” is [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 10] fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741 (SDNY), aff’d, 623 F.2d 252 (CA2 1980) (“I Love Sodom,” a “Saturday Night Live” television parody of “I Love New York” is fair use); see also House Report, p. 65; Senate Report, p. 61 (“se in a parody of some of the content of the work parodied” may be fair use).

The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” 972 F.2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” 12 or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” 13 For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e.g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F.2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. 14 Parody [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 11] needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. 15 See Ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U.S., at 561 . The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 12] through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew’s “Pretty Woman” contains parody, commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew’s song copy the original’s first line, but then “quickly degenerat[e] into a play on words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them.” 754 F.Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song “was clearly intended to ridicule the white-bread original” and “reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance, and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.” 972 F.2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew’s song, it assumed for purposes of its opinion that there was some. Id., at 1435-1436, and n. 8.

We have less difficulty in finding that critical element in 2 Live Crew’s song than the Court of Appeals did, although, having found it, we will not take the further step of evaluating its quality. The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. 16 [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 13] Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, “*t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (circus posters have copyright protection); cf. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267, 280 (SDNY 1992) (Leval, J.) (“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed”) (trademark case).

While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 14] claim to fair use protection as transformative works. 17

The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew’s fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from Sony, that “every commercial use of copyrighted material is presumptively . . . unfair. . . .” Sony, 464 U.S., at 451 . In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term “including” to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into “purpose and character.” As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U.S., at 561 ; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 15] uses listed in the preamble paragraph of 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Harper & Row, supra, at 592 (BRENNAN, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that “[n]o man but a blockhead ever wrote except for money.” 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934).

Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a “sensitive balancing of interests,” 464 U.S., at 455 , n. 40, noted that Congress had “eschewed a rigid, bright-line approach to fair use,” id., at 449, n. 31, and stated that the commercial or nonprofit educational character of a work is “not conclusive,” id., at 448-449, but rather a fact to be “weighed along with other[s] in fair use decisions.” Id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals’ elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” 471 U.S., at 562 . But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in school. See generally Patry & Perlmutter 679-680; Fisher v. Dees, 794 F.2d, at 437; Maxtone-Graham [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 16] v. Burtchaell, 803 F.2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (CA9 1992). 18

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=U10426

Here is a good discussion:
http://www.edwardsamuels.com/illustratedstory/isc8.htm
And another: http://ccnmtl.columbia.edu/projects/law/library/cases/case_berlin_ec.html

[Exapno_Mapcase]

Campbell v. Acuff-Rose may have been the first parody case to be decided by the Supreme Court, but that’s not the same thing as saying that no courts had ever ruled on parody.

Irving Berlin et al. v. E.C. Publications, Inc. was a 1964 Circuit Court decision and the 1961 Report I cited clearly indicates that courts had already laid down decisions.

You own link includes a pre-Benny example:

Here are some examples of what has been found to be within the ambit of fair use: From Here To Obscurity, a Sid Caesar television takeoff of the movie From Here to Eternity;

And further states:

For example, MAD Magazine has spoofed Disney characters, as well as just about every other cultural icon around. And yet MAD generally is not sued, or wins lawsuits brought against it.

I understand that nothing’s ever really final until the Supreme Court says so (and not even then in reality) but the history of parody clearly shows that it was a very unusual event for anyone to sue over a parody and even rarer for anyone to win, and the history of writing clearly shows that all writers felt they were perfectly safe in producing parodies. And that’s because the courts have, mostly, usually, allowed them that freedom.

[Gfactor]

Mr. Patry disussing the Sid Caesar case ( Columbia Pictures v. National Broadcasting Co.):

Judge Carter (Judge from the Loew’s case, mentioned above as the premier case) retreated from his view that parody should be treated no differently from an ordinary use. . . . From a review of these exhibits, it is clear that there was no substantial taking as in *Loew’s * the judge so held.

It is sort of a fair use case. Here’s what the judge said:

Some higher court may decide burlesque was a defense per se. I do not choose to do so.

We trust we have not followed the system of Judge Bridlegoose of Rabelais, and stacked plaintiff’s papers on one end of the table and defendant’s on the other, before determining in whose behalf we would first cast the judicial dice. Actually, this case tests the general principle and the dictum in Loew’s Incorporated, v. Columbia Broadcasting System, Inc. It is an excellent companion case for Loew’s and we hope that they may stride together through the hazard of judicial review and still remain consistent companions. Unlike Loew’s, here there was a taking of only sufficient to cause the viewer to recall and conjure up the original. This is a necessary element of burlesque. As Dr. Baxter stated at the trial of Loew’s Incorporated, v. Columbia [**6] Broadcasting System, Inc., the defendant has taken a small part and then “(taken) off into the blue.” (131 F.Supp. 183.)

I was responding to the statement: “I think the parody exemption was established long before the Mad Magazine case.” This case rejects a pardody exemption, but considers the use under the 9th Circuit’s substantial takings/fair use weirdness. Nevertheless it is a fair use case involving a parody (or burlesque). But the opinion was published in 1955. How is that long before 1964?

The *Loew’s * Court noted, btw, that:

But up to the time of the present controversy, no federal court, in any adjudication, has supposed that there was a doctrine of fair use applicable to copying the substance of a dramatic work, and presenting it, with few variations, as a burlesque.

Patry notes that the MAD court cited HILL v. WHALEN & MARTELL, Inc. (S.D.N.Y 1914), which he says “recognized but rejected without much comment because of defendant’s bad faith and colorable copying.” Here is what the court said:

The defendant says that his representation of them was a mere parody or burlesque of the original, and was so intended.

[*360] A copyrighted work is subject to fair criticism, serious or humorous. So far as is necessary to that end, quotations may be made from it, and it may be described by words, representations, pictures, or suggestions. It is not always easy to say where the line should be drawn between the use which for such purposes is permitted and that which is forbidden.

One test which, when applicable, would seem to be ordinarily decisive, is whether or not so much as has been reproduced as will materially reduce the demand for the original. If it has, the rights of the owner of the copyright have been injuriously affected. A word of explanation will be here necessary. The reduction in demand, to be a ground of complaint, must result from the partial satisfaction of that demand by the alleged infringing production. A criticism of the original work, which lessened its money value by showing that it was not worth seeing or hearing, could not give any right of action for infringement of copyright.

In this case, I am satisfied that the representation of defendant’s “In Cartoonland” was calculated to injuriously affect, and that to a substantial degree it did so affect, the value of complainant’s copyright. Those who saw “Nutt” and “Giff” would have less keen a desire to see “Mutt” and “Jeff.” Having seen the former, they would be more likely to spend the next dime or quarter they had available for such purpose on a show other than the authorized dramatization of the latter. A good many of them would probably think that they had already seen those characters. They would not be far wrong in so thinking. The next time they would prefer to see something else.

So until about 1955, there was meager authority, at best, for parody as fair use. In 1955, the a District Court in the 9th Circuit accepted a fair use defense involving a parody, but refused to single parody out for special treatment. That’s what I meant to say.

[Acsenray]

@RealityChuck

No. As I said, no one can lay claim to a rhyme and rhythm scheme. As long as you don’t perform it, you are fine.

And sitting at your desk and singing it is not a performance. Sitting at your desk telling someone else to sing it is also not a performance. Writing the words “la la …” and telling someone to sing it to the tune of “Happy Birthday” is not a performance or a copy.

[Little_Nemo]

To get back to the OP, parody is a specially protected form of fair use because the Constitution protects the principle of free speech to promote the unfettered discussion of political ideas. And, as satirists from Jonathan Swift to Al Franken have known, one of the most effective methods of discussing a political idea is to parody the political ideas of your opponent.

[Gfactor]

@Little Nemo

To get back to the OP, parody is a specially protected form of fair use because the Constitution protects the principle of free speech to promote the unfettered discussion of political ideas. And, as satirists from Jonathan Swift to Al Franken have known, one of the most effective methods of discussing a political idea is to parody the political ideas of your opponent.

Well, it is protected as a form of comment or criticism, not by the Constitution, but, by Section 107 of the Copyright Act of 1976. *See, e.g., * Campbell (We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under 107; and see, *Dr. Seuss v. Penguin Books * (9th Circuit 1997): http://laws.lp.findlaw.com/9th/9655619.html (new work must comment on or target original work in order to be parody) *and * Adriana Collado, "Unfair Use: The Lack of Fair Use Protection for Satire Under § 107 of the Copyright Act, 9 *J. Tech. L & Policy * 65 (2004): http://grove.ufl.edu/~techlaw/vol9/issue1/collado.html

On the relationship between the First Amendment and copyright law see: Netanel, Neil W., “Locating Copyright Within the First Amendment Skein” . Stanford Law Review, Vol. 54, October 2001 Available at SSRN: http://ssrn.com/abstract=267848

[Tim_T-Bonham.net]

@Tyrrell McAllister

Did I violate copywrite just by writing this, even though I didn’t actually perform it?

Even if you or someone else actually sang this in a performance, a good lawyer could argue that it was parody; that the meaningless la-la-la lyrics were intended to show how meaninglessly people sing Happy Birthday, even for people they don’t know or don’t like.

Plus the other side would have to show how that performance of la-la-la actually caused them damages. For example, if not for that, your parody performance would have included their Copyrighted Happy Birthday song, and paid royalties to them. That might be a hard thing to prove, too.

[Gfactor]

@t-bonham@scc.net

Plus the other side would have to show how that performance of la-la-la actually caused them damages. For example, if not for that, your parody performance would have included their Copyrighted Happy Birthday song, and paid royalties to them. That might be a hard thing to prove, too.

Not quite. Fair use is an affirmative defense. The defendant has the burden of coming forward with evidence to establish it. As the Court said in Campbell,

Since fair use is an affirmative defense, 20 its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets. 21 In moving for summary judgment, 2 Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for rap derivatives, and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original.

It noted that there is no “presumption of market harm,” and continued,

We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 23] well as artistically,” B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between “[ b ]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.” Fisher v. Dees, 794 F.2d, at 438.

This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectable derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. “People ask . . . for criticism, but they only want praise.” S. Maugham, Of Human Bondage 241 (Penguin ed. 1992). Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of “Oh, Pretty Woman,” see 972 F.2d, at 1439, the court erred. Accord, Fisher v. Dees, 794 F.2d, at 437; Leval 1125; Patry & Perlmutter 688-691. 22

In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., “parody pure and simple,” supra, at 22). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew’s song comprises not only parody but also rap music, and the derivative market for [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 24] rap music is a proper focus of enquiry, see Harper & Row, 471 U.S., at 568 ; Nimmer 13.05[ B ]. Evidence of substantial harm to it would weigh against a finding of fair use, 23 because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market. 24

(Footnotes left in because I’m too lazy to delete them).

So a Court would probably find that there was little chance of market substitution unless the plaintiff could prove it. OTOH, one shouldn’t read t-bonham’s comment as suggesting that you can get away with copyright infringement just because the owner can’t prove damages. Statutory damages are available.

[Tyrrell_McAllister]

@t-bonham@scc.net

Even if you or someone else actually sang this in a performance, a good lawyer could argue that it was parody; that the meaningless la-la-la lyrics were intended to show how meaninglessly people sing Happy Birthday, even for people they don’t know or don’t like.

Mad magazine presumably didn’t actually sing or perform their parody lyrics when they were sued. It would seem, then, that absent their parody defense, merely printing the lyrics and indicating the tune indirectly could have qualified as infringement. I will state right now for the record that my lyrics are not intended as parody. Rather, they are intended to serve as an example to help me understand the finer points of copyright law. Assuming that I have now destroyed any chance for a parody defense, did my post #5 qualify as copyright infringement?