Many of you have heard of the musical artist "Weird Al" Yankovic. "Weird Al" is famous for taking popular songs and changing the lyrics into something humorous while keeping in the same style as the original song. The big question surrounding "Weird Al's" music is this: Can he take somebody else's song without asking permission? The answer is "yes." This is because "Weird Al" creates a parody of the original song.
I am told that Yankovic obtains permission from the songs' owners just to keep good relations and avoid the hassle of controversy. The copyright law has carved out a special section in regards to fair use that pertain to parody and satire. So what exactly is the difference between a parody (which would allow "Weird Al" to make his music) and a satire (which are afforded protection under fair use), and a joke (which is not protected under fair use)? My legal definition of a parody - drawn from an examination of the cases in this area - is the following:
1. A new, copyrightable work
2. Based on a previously copyrighted work
3. To such an extent that the previous work is clearly recognizable
4. But not taking more from the copyrighted work than is necessary
5. That criticizes or comments on, at least in part, the subject matter or style of the previous work, AND
6. Is not likely to hurt the value of the previous work
While most examples of parody turn out to be humorous, humor is absolutely not a requirement. Because "Weird Al's" songs meet the requirements for a parody, he does not need to get permission, nor does he need to pay, the original creator of the song.
Unlike a parody, a satire can stand on its own and make a statement without borrowing from an original work. A satire tends to mock social conventions. When courts are presented with a satire case, they don't say, "This is a satire, so we will give it extra latitude." Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis.
In a recent case, the artist Jeff Koons was hired to create a series of paintings for Germany's Deutsch Bank. He scanned advertising images and his own photographs into a computer and digitally superimposing the scanned images against backgrounds of pastoral landscapes to comment on the ways in which our most basic desires are depicted in popular images.
Koons used a photo by Andrea Blanch entitled, "Silk Sandals by Gucci" and incorporated part of the photo into his own artwork, which depicted four pairs of women's feet and lower legs dangling over images of various dessert dishes. The court explained the satire in detail by describing the social comment being made, and it weighed in favor of Koon's appropriation because the use of the photo was transformative and because its purpose was to demonstrate how advertising whetted our various appetites, not to sell shoes for Gucci.
Koons used Blanch's work to comment on its social meaning rather than to exploit its creative virtues. Koons wanted to "comment on the ways in which some of our most basic appetites for food, play, and sex are mediated by popular images." Doesn't this sound like the very definition of satire?
By contrast, a joke is something that is said or done to evoke laughter or amusement. It can be a one-liner or an amusing story with a long-awaited punch line. A parody or satire does not have to be funny. The difference between a parody or satire on the one hand and jokes on the other is crucial, since jokes are not generally copyrightable whereas a parody is. Generally, jokes are considered to be ideas and copyright law only protects expressions of ideas fixed in tangible form. In short, parody and satire are protected by copyright law as a subset of the fair use doctrine, whereas jokes (while some can be very funny) are not protected subject matter covered by copyright law.
Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over thirty years. His book Clearance and Copyright, the third edition of which was just released, is used in over 50 film schools and has become the standard reference book for the industry.
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