Saturday, June 23, 2012
Music Business/Law Tips - "Parody"
For instance, you have written a parody of a John Mayer song, which does not substantially change the original music of this famous song but incorporates humorous new lyrics throughout (ala Weird Al). I note that this is not a “sample” in that it is a whole new recording. It is also important to note that there are 2 copyrights at issue here: (1) The composition copyright (song) which John Mayer's publisher administers for him [this is the “c” in the circle], and the (2) sound recording (master) of your parody version which you own [this is the “p” in the circle]. You only have to be concerned with the "c" copyright. Some quick background why Weird Al, et al generally tries to obtain permission to do a parody up front just to be safe since the world of fair use/parody is a slippery slope as it could be considered a derivative work, and each situation is case by case and not always legal per se (see famous cases e.g., 2 Live Crew case from the 80s where the final judgment of the appeals court prevented the parody of Roy Orbison’s “Pretty Woman” by 2 Live Crew on the grounds that it was blatantly commercial and damaged the market for the original, and the Catholic Priest’s re-done version of Jesus Chris Superstar from the 70s where the court would not allow it either). On the other hand there have been numerous other cases which allowed the parody. Under the Copyright Act of 1976 (Section 107) the court will weigh several factors to allow or prevent a parody (or any fair use of an existing copyright): 1. Is it for commercial or non-profit use (i.e., education, news, charity, etc)? 2. What is the nature of the original work (i.e., was it a hit song)? 3. Is the parody a close copy to the original (substantially similar) or does it just use bits a pieces of original? 4. Does it damage the potential market for the original or somehow diminish or tarnish the value of the original? Although for practical purposes you can make and release this parody and never obtain permission or share profits with John Mayer since its really under the radar, there is a chance if it took off you could possibly get sued for infringement, and then it would be up to the court to decide whether your parody would be allowed without permission by viewing all the factors set forth above. I think its down to a balance of whether your version would damage the original version due to massive sales (since clearly you are doing this for profit). Since getting permissions is a hassle and time consuming and sometimes expensive, you may just want to put out your version and then if someone ever comes after you get the permission then (and you could claim in good faith you did not know you needed it since you thought a parody was excepted which is a valid argument due to the murky nature of this issue), or worst case they would probably just tell you to stop selling. Ill have to leave that to you. If you do want to be 100% safe and seek a permission or give a courtesy notice, you can find out who administers famous song by checking with BMI.com, ASCAP.com or Harryfox.com. Ben McLane Esq benmclane.com