Say I’m a songwriter (which I am, strictly amateur) and I’ve written a song (I have, two songs in fact) that use someone else’s music but original lyrics. Both songs make fun of the originals—think “Al Yankovich” or “Tom Lehrer” or someone of that ilk. (One of them makes direct fun of the songwriter, who for good or ill has died by this time.)
Right now, I’m playing them for my own amusement, and my friends, who tell me the songs are pretty funny. So far, no harm, no foul, but I’m thinking about what else I might do with them. Obviously I’m not about to claim I had anything to do with composing the music, and I don’t think there’s anything to stop me from goofing around in private. If I go a step further, do I need permission from the copyright holder to play these songs? To perform them for money (as if)? To record them (obviously, yes)? I think Yanovich made a point of asking permission from the artists he made fun of, but my understanding was that he wasn’t required by law to do so—he did so as a courtesy, and most (not all) of the artists he contacted said, “Sure, go ahead.” Is it just a formality, or can I claim plausibly that parodying something somehow protects me against copyright violation? That seems kind of nuts to me, but if not, then I’m misremembering the story I heard about Yankovich asking as a courtesy. Is “parody” any protection at all? If I were to sell these songs somehow, I’d have no problem sharing the proceeds with the people who actually wrote the music but is that anything I need to concern myself about at this stage?
Generally, courts are more likely to find that a parody qualifies as fair use if its purpose is to serve as a social commentary and not for purely commercial gain.
Can you support an argument that your works “serve as social commentary”?
Uncle Cecil did a column on “mechanical license”. If you want to cover a song, or use the music for a parody- they cannot legally stop you. However, you will have to pay a lot more money to the original artists then if you worked out an agreement.
As you noted, parody covers you for the lyrics only. If you want to use the music, you will need to pay.
Parody, and whether there is a copyright infringement, is analyzed under the same four factors as any other claim of fair use. That is, the analysis is very much a fact specific review that will look at the following:
Purpose and character of use: most importantly, whether the use is for profit or nonprofit, and the purpose of the use
Nature of the copyrighted work: Specifically whether the work is primarily factual or more creative.
Amount and substantiality of the portion used: How much of the copyrighted work is being used (ie the entire work or just part is being used)
Effect on the potential market for or value of the work: whether the new work will harm the market for the original copyrighted work
OK, you be the judge(s) then. One of the parody songs I’ve written is set to the tune of the Eagles’ Hotel California, but entitled “(Don’t Tell Me I’m) Hostile to Californians” written from the perspective of a non-Californian who tries to rent or buy a home in Southern California but finds the real estate prices, jammed freeways, snooty attitudes of Californians, intrusive state government, fear of earthquakes, you-name-it (and please do–I can add an extra verse or two) off-putting, so he explains why he’s fleeing the state in horror.
Does this have social merit? Is it factual or creative? Will this tend to harm the market for the original? I guess I could argue it’s kind of a free ad promoting the original.
While the law does set out a number of factors that can be used to determine whether a work qualifies as “fair use”, there are no points assigned to those factors, or a minimum number of them to qualify, or anything objective like that. Each individual case can, potentially, be tried by the courts. About all you can say for sure is that if you meet all of the factors, it’s fair use, and if you meet none of them, it isn’t.
And if the copyright holders are the litigious sort, it may well cost you more in legal fees to defend than you may have.
There’s no automatic determination about these sorts of things. For the artists, it’s often more trouble than its worth for the obvious cases, especially for the PR blowback they’d take in many cases. But if somebody is making money from a claimed parody, that’s going to raise some flags.
One thing in your favor is that about a million parodies are written every year and the number of them that wind up in court is about 0.654. (Numbesr obviously made up.)
You could very well the one who gets dinged, so no responsible person would outright tell you to go ahead without knowing every single detail, because a court case will bring up every single detail, including many you didn’t know are details. IP law is a particularly difficult branch of the law because the number of cases that make it through the courts to become case law are so few and so random. Every new media has to litigate IP law anew as well.
It is true that parody is protected speech if it falls under fair use. It’s also true that you don’t have to ask permission from the copyright owner(s). The owner is not necessarily the singer, but more usually a production company. Who owns a song is a swamp you don’t want to get into. It’s also true that the music itself is copyrighted. That alone is enough for a YouTube instant takedown if the owner complains. I don’t know what other social media’s policies/rules are. They are policies rather than U.S. law, which currently allows and even encourages parodies.
Even if permission is sought and refused, the fair use provision means a parody may still be made. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a case before the U.S. Supreme Court about a parody of the Roy Orbison song “Oh, Pretty Woman,” the parodists asked permission and were refused, then released their parody anyway. The Supreme Court found that asking permission and being denied did not negate a fair use defense to using the copyrighted work. “If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.” …
Campbell v. Acuff-Rose recognized that parodies were fair use. In a 2015 infringement case on a parody of the television show Three’s Company, a federal judge wrote ““is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.” Adjmi v. DLT Entertainment, Ltd., 97 F.Supp.3d 512 (S.D.N.Y. 2015).
If you want to take your parodies beyond your house, I’d check with what other people are doing on that site or venue or whatever. If parodies are rampant, then you should be able to get away with yours. But to be safe I’d first check and see how litigious the Eagles are. Maybe they like to clobber wannabe parodies.
When Eric Idle and Neil wrote The Rutles they were careful not to use Beatles lyrics or tunes, but some of them still ended up having to be credited at least partly to Lennon/McCartney.
All Rutle songs are still (solely) credited to Neil Innes. The owners of the Beatles catalogue at the time, ATV Music, sued and got 50% royalties.
John Lennon got a pre-release videotape and loved the film, but warned Innes that the song “Get up and go” was very close to “Get Back” and he might get sued by ATV so they removed that song from the movie (yet as above, still got sued).
Extra detail: music means the notations on a sheet, not the recording of a performance. So, if you are using a similar* tune, you may be in copyright violation.