Parody and Satire Videos, Which Is Fair Use? 286
Hugh Pickens writes "Ben Sheffner writes that both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign 'parody' videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material. The motions focus largely on one issue: whether the videos, which use the compositions 'The Boys of Summer' and 'All She Wants to do is Dance,' are 'parodies,' and thus likely fair uses, or, rather, unprivileged 'satires.' The Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), said that a parody comments on the work itself; a satire uses the work to comment on something else, so for Henley, this is a simple case: DeVore's videos do not comment on Henley's songs but use Henley's songs to mock Boxer. DeVore argues that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and asserts that the campaign chose to use Henley's songs for precisely that reason. 'DeVore's videos target Henley only in the loosest sense,' writes Sheffner, 'and his brief's arguments ... sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).' The case also bears directly on the recent removal of the 'Downfall' clips from YouTube where many journalists have almost automatically labeled the removed videos 'parodies' while the vast majority aren't, says Sheffner."
..political uses of third-party material.. (Score:2, Insightful)
Hmm. To a dark place this line of thought will carry us. Great care we must take.
I thought it was pretty simple (Score:5, Insightful)
Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.
Re:Political speach (Score:5, Insightful)
I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.
You are confusing freedom of speech (politically motivated and otherwise) with fair use. Imagine for example (and just for shits and giggles) that during the last presidential elections, the Republican party decides to make a satire of Obama at the tunes of, say, one of Michael Jackson's songs (say, "Beat It".) You could alter the roles with the Democratic party making a satire of McCain/Palin (as well as changing the name of the artist and type of art being used) but the essence is the same - a satire and form of political speech using copyrighted material without parodying the copyrighted material herein used.
It would be legally reasonable that the Jackson's camp would be entitled for monetary fees due to the usage of those songs for purposes other than parodying the song and the artist. The law would recognize the artist' claim (which should not be construed as an attack to freedom of speech.)
As for the analogy with the removal of the Hitler parody videos, I'm sad to see them go, but the law is clear in that satires are not protected in the same way parodies are (wrt of using copyrighted material). None of this should be construed either as an attack to freedom of speech in the form of satire or parody.
Unfortunately, the law is (or seems to be) clear on this. I hope that someday (sooner I hope) the law gets amended so that satires done for non-commercial purposes get the same protection wrt copyrighted materials (at least so that we can all enjoy Hitler going at it for lolcatz sake).
Re:I thought it was pretty simple (Score:5, Insightful)
Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.
Weird Al actually parodies the song itself, so he could talk over it karaoke-style if he wanted to. He's probably re-recording it because it gives his parody a more professional polish and gives him some musical creative freedom. He really doesn't have to do that in order to be parodying the song. I also heard in an interview with him on NPR that, even then, he still seeks permission from every artist he parodies just to avoid any potential legal conflicts (citation needed).
As I understand it, however, even if you re-record someone's music, it's still subject to copyright. The first case that comes to mind is the Coldplay vs. Joe Satriani [mtv.com] lawsuit, where Joe alleged that Coldplay stole some of the melody from one of his songs. In this case, even though Coldplay clearly physically played the music, it was still potentially subject to copyright.
Re:Political speach (Score:2, Insightful)
I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.
I don't think there's any legal precedent concerning freedom of political speech versus possible copyright violation, which is what makes this case interesting and important to watch.
As far as the Downfall bunker scene meme goes, the author is right--almost none of those videos are actual parodies of the movie. They're satire of an entirely different subject, which is not protected as fair use and makes them vulnerable to a takedown notice. I still think the producers are being short-sighted by doing it, however, because it's been priceless advertising for what was otherwise an obscure German-language film. I'd never heard of it until I started seeing the clips on YouTube but I ended up renting it.
Disclaimer: IANAL, just an interested layman.
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
Free speech is about being able to get your message out against the government. To say that "copyright trumps free speech" is exactly wrong. Where copyright is counter to free political speech, copyright gives way.
Good liberalism supports totally free speech: freedom of speech, freedom of expression. For supposed "liberal" artists to get upset when their works are used as free speech is hypocritical.
If there's one thing that Americans left and right should have solidarity on it's the support of the Bill of Rights. Any politician of any political flavor who doesn't support FREEDOM for the citizens of our country should be fought tooth and nail. It's amazing how many people just don't seem to get that and try to pick and choose the freedoms that they like the exact way that they like them.
To reiterate (Score:2, Insightful)
Re:Republicans stealing music again? I'm shocked. (Score:2, Insightful)
It's always funniest when they steal "Born in the USA". The entire song is dripping with contempt for all the hypocrisy the Republicans stand for, and they're oblivious to it.
Re:Republicans stealing music again? I'm shocked. (Score:5, Insightful)
They are two completely different issues.
Mock the king[1] all you want - but do it in your own words, not mine[2] - else you're just as much of a leecher as he is.
[1] of course he won't understand anyway, unless ye doeth itt iynn ye Germannical tongue.
[2] unless I say so, in which case pay up.
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
Bullshit, you can't use copyrighted material in a political ad or speech without paying for it. Period.
All the rest of your post is a similar worthless obfuscation and appeal to emotion. If you want to make outrageous contra-factual claims, back them up with, oh I don't know, the relevant passages from the Bill of Rights and the Constitution.
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
Where copyright is counter to free political speech, copyright gives way.
Wrong. You can still make your message without using someone else's work, so it would in no way infringe your first amendment rights. You don't lose your rights to your own work simply because someone else has a political bone to pick.
You also don't have the right to walk into my house and make a political speech. Your first amendment rights don't "trump" my property rights. You have the right to make your speech in a public place, your home, or the home of anyone who allows you permission to gain access. Whether you, me, the copyright owner, the satirist, whoever, is a Liberal, Conservative, Libertarian, Librarian or whatever, is meaningless in the context of rights.
And on the main point, it is pretty simple: Parody makes fun of the work you are borrowing from (Wierd Al), Satire is when what you are making fun of is not related to the material being used at all. Why this is an issue when they are clearly defined in law is beyond me. This is why most legal satire uses familiar music that is in the public domain (the tune from Yankee Doodle, etc.) Mark Russell [markrussell.net] is an old school political satirist who seems to have understood this.
Re:Republicans stealing music again? I'm shocked. (Score:2, Insightful)
I attribute this to the majority of musicians, filmmakers and artists being Democrats. When a Democrat uses a song without paying for it from an artist who is a Democrat, they're not going to complain.
Re:Republicans stealing music again? I'm shocked. (Score:4, Insightful)
It just seems odd that while you can twist a work to mocks/comment on the original work( which is politically fairly worthless) you cannot twist a work to mock/comment on what it was used to promote(which is politically fairly worthwhile).
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
I believe in 100% unfettered free speech.
That being said, this isn't a matter of free speech. You're suggesting that I should have the right to freely redistribute Avatar if I accompanied it with political speech.
Any politician has the right to say anything that want about another politician (just in that you should have the right to say anything about me you want), but that doesn't give you the right to breach copyright.
However, there is a seperate debate here about whether or not copyright was breached. If this is satire, it could be fair use.
Re:Legal "satire" vs. literary "satire"? (Score:5, Insightful)
Of course both songs were written and recorded over 20 years ago, they should both be in the public domain by now if copyright had a reasonable duration (Ok I would consider it reasonable if their copyright expired in 2012).
Personally, I think this case is a perfect example of why copyright should be shorter. These songs sum up the message that DeVore wants to convey about Barbara Boxer and our culture would be much richer if such songs could be used for the purpose intended here.
I flipped on this one to support the musician (Score:3, Insightful)
After reading a bit more about this I suprised myself by changing my mind. My first knee-jerk reaction was that the videos were ok because they were parodys/satire.
But basically if this was allowed, you could use any music for any video you make whatsoever, and claim it is a satire/parody. Maybe you are required to insert at least one insult, about a random subject, into the video, so it is a "satire or parody". This would completely defeat copyright and certainly is not a good idea.
However that if Boxer had officially used one of these songs in their own videos (after paying for the rights, as required), somebody parodying the Boxer ad can use a parody version of that same song. I believe this was done by conservatives on some Obama attacks. More to the point here, a joke video about Windows using a Rolling Stones "start it up" parody would be allowed, since that was part of the Windows advertisement, but use of a different Rolling Stones song that Microsoft did not use is not allowed.
Re:Legal "satire" vs. literary "satire"? (Score:3, Insightful)
No one said that satire is illegal. What was said is that using someone else's copyrighted material without permission as part of the satire is not protected by fair use. Big, BIG difference.
- Using clips of a movie to make fun of that movie = parody = fair use
- Using clips of a movie to make fun of something else entirely = satire = not fair use
You can agree or disagree with the above, but that's where the courts currently stand on the issue.
(As an aside, Twain, et al, didn't use other people's copyrighted works in their satires)
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
Re:Republicans stealing music again? I'm shocked. (Score:4, Insightful)
Exactly, I think this is what Spun misunderstands. These left-wing bands complaining (eg Heart/Barracuda) when Barracuda was played at Palin rallies is no different from when Sam Moore demanded that Obama stopped using Hold On, I'm Comin. You can't control who plays your song, or who listens to your song.
If a political campaign (as in the case of this story) uses a song in a paid ad, that's a very different case. One can't just conflate these widely disparate examples and come across with a "REPUBLICANS ARE DIRTTY LYING THEIVESS ZOMG!!" conclusion (as a 10 second google finds examples on both sides of the aisle),
I personally find this area tricky and troubling ground. There's so much creativity on Youtube and elsewhere that can just be totally SQUASHED by law. As mentioned in the summary, Downfall is a great example, but in general--music videos, remixes, etc... I think it would be a sad world if we lost all of that.
Dangerous Precendent (Score:2, Insightful)
That's quite a dangerous stretch counselor. If that were so, it would follow that usage of copyrighted works would depend on how much the holder's political leanings coincide with the person being mocked.
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
When a Democrat uses a song without paying for it from an artist who is a Democrat, they're not going to complain.
So then provide an actual example rather than a vague claim with no actual citation.
Comment removed (Score:4, Insightful)
Re:Democrats getting a pass on theft? Yep. (Score:3, Insightful)
Didn't Obama give sweet appointments to a bunch of RIAA lawyers?
http://www.wired.com/threatlevel/2009/04/obama-taps-fift/ [wired.com]
That being said, we're veering way off-topic. I maintain my position that both parties usually have dirty hands.
Re:Republicans stealing music again? I'm shocked. (Score:3, Insightful)
LOL
If a Democratic candidate infringes a liberal-leaning artists copyright, and a Republican tries to "make hay" over it, the determination of which one comes off looking like an ass will be made by who the liberal-leaning artist deicdes to side with. A Republican considering this approach would have to weigh the risk that, knowing the political effect of his/her actions, the artist would choose to side wtih the Democrat even if the original use was copyright infringement.