Forum Moderators: not2easy
It's an interesting case that could open up or close down Fair Use of copyrighted material.
There are already much more questionable cases of the use of the "parody" defense on the books -- I'll eat my hat if this is ruled an infringement.
It's an interesting case that could open up or close down Fair Use of copyrighted material.
Actually, if you read the decisions on similar cases, they are usually ruled on by first amendment grounds. Parody, satire and political speech are all areas that are protected.
The key phrase in the first amendment is "Congress shall make no law". So, even if congress was to try and restrict it, they would have serious problems convincing the courts that they have that right.
As I understand the situation, though, there is an important distinction between parodying a work and using the work to make fun of something else. The JibJab cartoon seems to be much more a parody of Bush and Kerry than of the song.
There are other arguments for fair use, and I certainly hope JibJab wins.
BTW I highly recommend everyone see the cartoon - it is hilarious.
there is an important distinction between parodying a work and using the work to make fun of something else.
I agree with you. However, the courts seem to strongly favor the "parody defense" covering significantly more than what the logical/sane person would call a true "parody".
The part where it is making fun of the polititians is even more protected as both parody and political speech. This thing has so much going for it it isn't even a close call. They would need a new set of supremes to lose this one.
Of course the most ironic thing about it is that I would be shocked if Woody objected given his politics.
Prior court cases
Campbell v. Acuff-Rose Music
[supct.law.cornell.edu...]
dr. seuss enterprises v. penguin books - [www2.tltc.ttu.edu...]
From Justice Souter's decision
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. . . . 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.
Personally, I do not think JibJab is commenting on the song. JibJab like Woody Guthrie before them are simply avoiding coming up with something "fresh."
You may disagree, the courts may disagree, but to say it is 100% a parody of the song is absurd.
It is playing on the words of the song. Making fun of the ambiguity of the wording. That is parody of the sort that you are referring to. Just because it is also making fun of Bush and Kerry, does not mean that it is not a parody of the song.
Eat It by Weird Al not only poked fun at the song Beat It, it also poked fun at fat people. The poking fun at fat people in no way diminishes the fact that it is also poking fun at the song.
So yes, it is 100% parody of the song, even if it also makes fun of others at the same time, the parody is of the song.
More on Wield Al, though:
1) In as much as Wierd Al is funny, it is because someone is familiar with the song he is singing. This is not the case for JibJab. If someone was familiar with the presidential campaigns but had never heard This Land or knew about it, they could still find JibJab just as funny as someone who did.
2) Oh, and BTW Wierd Al gets permission and pays royalties for the songs he uses.
[tommcmahon.net...]
Now, as I understand it Woody Guthrie and his song are pretty iconographic of working class populism. So, if JibJab wanted to parody the song they could have done so by portraying Bush & Kerry as a couple of interchangable elites. That no matter who wins the presidential campaign, the common person loses. IMHO, making phrases ambiguous by pulling them out of context, does not constitute parody.
Weird Al IS a good example of what happens when you get prior permission and/or pay licensing fees.
[edit: sorry figment88, I missed that you already mentioned this fact]
In Dr. Seuss they even admitted that Penguin failed to properly aruge their affermitive defence.
Let's go thorough the Campbell v. Acuff-Rose point by point and try comparing it to this case.
More on Wield Al, though:
1) In as much as Wierd Al is funny, it is because someone is familiar with the song he is singing. This is not the case for JibJab. If someone was familiar with the presidential campaigns but had never heard This Land or knew about it, they could still find JibJab just as funny as someone who did.
Yeah, well I can guarantee you that the Woody Guthrie song is significantly more familiar in the United States than any michael Jackson song. I expect that it is upwards of 90% of the native born people, and most certainly above 50% of those that are naturalized. You have to be a certain generation and class to be familiar with Beat It.
By the way, there are dozens of parodies of This Land that are really popular among 6-10 year olds that play precisely on that "this land is your land, this land is my land" bit. That is part of what leads to the familiarity.
2) Oh, and BTW Wierd Al gets permission and pays royalties for the songs he uses.
It does not mean that it is not a legal parody. It just means that he wants to avoid going through the hassle of a suit. And the commercial aspect would be taken into account as a factor.
There is also the fact he makes a pretty good living from these songs AND he wants the industry to accept his work and to get airplay. That is not a concern for JibJab.
What it will come down to is how well the lawyers argue the case. If they do a bad job, it will end up like Dr. Seuss.
(b) Parody, like other comment and criticism, may claim fair use. Under the first of the four §107 factors, "the purpose andcharacter of the use, including whether such use is of a commercial nature . . . ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. 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 work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. Pp. 8-12.
The words are certainly transformitive, they just kept the tag line. The music is less so, but they did make some changes.
And the ambiguity that you disagree with is definitely a comment on the author's work, and how the intention of the song doesn't seem to apply to the two candidates.
I certainly think that they can make enough of a point here.
c) The Court of Appeals properly assumed that 2 Live Crew's song contains parody commenting on and criticizing the original work, but erred in giving virtually dispositive weight to the commercial nature of that parody by way of a presumption, ostensibly culled from Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451, that "every commercial use of copyrighted material is presumptively . . . unfair . . . ." The statute makes clear that a work's commercial nature is only one element of the first factor enquiry into its purpose and character, and Sony itself called for no hard evidentiary presumption. The Court of Appeals's rule runs counter to Sony and to the long common law tradition of fair use adjudication. Pp. 12-16.(d) The second §107 factor, "the nature of the copyrighted work," is not much help in resolving this and other parody cases, since parodies almost invariably copy publicly known, expressive works, like the Orbison song here. Pp. 16-17.
Here they basically take the "I own it and they are using it and making money with it" out of the equation when it comes to parody.
(e) The Court of Appeals erred in holding that, as a matter of law, 2 Live Crew copied excessively from the Orbison original under the third §107 factor, which asks whether "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" are reasonable in relation to the copying's purpose. Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's "heart," that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Moreover, 2 Live Crew thereafter departed markedly from the Orbison lyrics and produced otherwise distinctive music. As to the lyrics, the copying was not excessive in relation to the song's parodic purpose. As to the music, this Court expresses no opinion whether repetition of the bass riff is excessive copying, but remands to permit evaluation of the amount taken, in light of thesong's parodic purpose and character, its transformative elements, and considerations of the potential for market substitution. Pp. 17-20.
The "heart" of This Land is that the United states belongs to all of us. Here again, they are poking fun on the ambiguity of that line and how it can be construed to mean something different.
(f) The Court of Appeals erred in resolving the fourth §107 factor, "the effect of the use upon the potential market for or value of the copyrighted work," by presuming, in reliance on Sony, supra, at 451, the likelihood of significant market harm based on 2 Live Crew's use for commercial gain. No "presumption" or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes. The cognizable harm is market substitution, not any harm from criticism. As to parody pure and simple, it is unlikely that the work will act as a substitute for the original, since the two works usually serve different market functions. The fourth factor requires courts also to consider the potential market for derivative works. See, e. g., Harper & Row, supra, at 568. If the later work has cognizable substitution effects in protectable markets for derivative works, the law will look beyond the criticism to the work's other elements. 2 Live Crew's song comprises not only parody but also rap music. The absence of evidence or affidavits addressing the effect of 2 Live Crew's song on the derivative market for a nonparody, rap version of "Oh, Pretty Woman" disentitled 2 Live Crew, as the proponent of the affirmative defense of fair use, to summary judgment. Pp. 20-25.
There is certainly no harm from market substitution. This clip will not in any way affect the sales of the original, unless someone hears it and decides to go out and buy the original.
Now let's go on to Dr. Seuss where it quotes Justice Kenedy's concurring opinion:
"The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well)." Id. at 597. The Second Circuit in Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.1992), also emphasized that unless the plaintiff's copyrighted work is at least in part the target of the defendant's satire, then the defendant's work is not a "parody" in the legal sense:
You might notice the sections that I highlighted.
It all comes down to whether or not JibJab hires incompetent or competent lawyers. I don't think they even need to be great lawyers, they just need to know how to cover all the bases.
I actually think that JibJab should have tried to license the work, just as a courtesy and to CYA. I also think the publisher needs to mellow out and learn to laugh a little bit. There is no value to them in prosecuting this case.
As I have said before, it is in the best interest of both sides to try to avoid getting into the grey areas of fair use. As a user, if you aren't sure, then get permission. If you are a publisher, go after the real infringement that is damaging your business, and put your money into more positive sales.
Weird Al Yankovic is a poor example for OR against the parody defense.
I was not intending it as an example of a parody defesce, but as an example of parody.
You are right, it is a great example of what to do if you want to avoid getting sued. Having a great defense does not stop the rights holder from filing the papers that can make your life miserable.
I started from the standpoint that it's not cut-n-dried, and in my opinion it is not a parody of the song. IMHO, parodying the song would require making fun of the song itself such as by mocking its populist message.
All-in-all I like JibJab and wish them the best.
Gosh that's a lot of work to go from "100% parody" with JibJab having nothing to worry about to it coming down to quality of lawyers.
It is 100% parody. Where did I ever say anything different?
That song meets all the requirements for it to be a parody. It doesn't have to be a good parody, or even primarily make fun of the original work. It just needs to do enough to be "reasonably
As for it "nothing to worry about", what I said was:
This thing has so much going for it it isn't even a close call. They would need a new set of supremes to lose this one.
Which is not the same thing.
And I will admit that I did not think about bad lawyering until I read the Dr. Suess case, where they at least partially lost by not covering one of the required affirmitive defenses.
And the lawyer would also be remiss if they do not bring up all the First Amendment issues.
What I expect will happen is that JibJab will request and receive summary disposition, and the appeals court will turn down the appeal. But I am not certain of that, so it might actually go to trial.
By the way, have you read the opinions that go along with the acuff-rose decision? You might find it interesting. Especially when you get to the paragraphs that start with the one that contains the quote in the Suess decision.
Here is a real beauty
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, "[i]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).
It seems like 8 of the 9 justices seem to think that they bar for what is considered parody should not to the level of "obvious parody", instead it is "whether a parodic character may reasonably be perceived" should be the test."
I don't think even Kennedy would even miss the parody in the ambiguity, but if he misses that, there is certainly parody in the scene with the indian. Is it enough? sure seems to me like there is more than with pretty woman.
It seems that the song went into the public domain in 1973, so the other issues are moot.
