When is it all fun and games? Parody and Copyright Law

03.18.15

Fair use has been getting tossed around a lot lately, especially regarding parody. It came to the forefront last year when GoldieBlox, Inc. filed a lawsuit for declaratory judgment against the Beastie Boys, et al. GoldieBlox, Inc. gave new lyrics to the song ​“Girls” replacing sexist lyrics with empowering ones. The Beastie Boys claimed copyright infringement and a longstanding prohibition against the use of their music in product advertisements. Luckily, they settled, allowing both parties to get back to what they do best.

But the internet moves on. Between llamas on the loose and The Dress was the joy of Brody and his bar mitzvah video. Xpress Video Productions, Inc. helped the irrepressible Brody Criz create an invitation full of spoofs of ​“Let It Go,” ​“Blurred Lines,” ​“Royals,” ​“Happy” and ​“All of Me.” So why can Brody dance his way through the video and the GoldieBlox girls have to find a new soundtrack?

Statute (17 U.S.C. Sec. 107, specifically) sets out four factors to be considered in determining whether or not a particular use may be considered a fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

For the first factor, one must look to see whether the new work merely supersedes or supplants the original creation or instead adds something new and alters the first with ​“new expression.” In other words, is the new work ​“transformative.” One must ask: Is the new work truly a new work that stands on its own, or does it simply attempt to get attention by borrowing from another work and diminishes the original work from this copying? 

Parody often gets a long leash. It needs to take significant portions of the original such that people recognize the original and appreciate (and hopefully laugh at) the transformation. The seminal case is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), in which 2 Live Crew parodies Roy Orbison’s A Pretty Woman. The court asserts that ​“Copying doesn’t become excessive …merely because the portion taken was the original’s heart. If 2 live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through.” It follows stating that ​“this is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free.” Rather, one must look at what else occurred. Was there transformation? And do the other factors make a difference?

In GoldieBlox, the words were changed, but as the Beastie Boys’ stated in their response ​“Make no mistake, your video is an advertisement that is designed to sell a product.” It was in a commercial to sell toys. Many artists make considerable money licensing their work for such purposes, and the Beastie Boys made a conscious decision never to do so. Brody, on the other hand, definitely transformed every song to hilarious effect. And he wasn’t selling anything. He just wanted to have everyone remember the invitation to his party. None of the songs were likely hurt commercially and even though substantial amounts were borrowed. One does not have to stretch far to see it meet the Supreme Court’s definition of parody: a literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule. 

The Court cautioned that the task calls for case-by-case analysis. Given that, the Copyright Office’s advice is sound: ​“The safest course is always to get permission from the copyright owner before using copy‑ righted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.”

And if you haven’t seen it yet, take the few minutes to bring a smile to your face with Brody, and no, you still aren’t invited to his party.

• Copyright |
• Intellectual Property