The Problem with Parodies

Copyright infringement vs. “parody” and “Fair Use” collided on the California campaign trail this summer, resulting in a landmark copyright court ruling in favor of song owner, Don Henley, while Republican Senatorial candidate Chuck DeVore’s June primary defeat darkened his decision to change Henley’s song lyrics.

The ruling marks the first time a musician has won in court over a parody, and follows another musical lawsuit in May by David Byrne of Talking Heads, who sued Florida Gov. Charlie Crist for use of “Road To Nowhere” in a campaign video.

DeVore changed Henley’s “The Boys of Summer” to “The Hope of November” in a video mocking Barack Obama, and revised “All She Wants to Do Is Dance” to “All She Wants to Do Is Tax” in a video criticizing Sen. Barbara Boxer. DeVore claimed Fair Use on the grounds that the songs he put in his videos were parodies. Henley sued over web videos that set new lyrics to two of his songs. The problem for DeVore was that legally, “a parody comments on the work itself; a satire uses the work to comment on something else,” as cited by Ben Scheffner in his blog April 24, 2010.

What implications does this court ruling have for churches? It could have a profound impact on many worship leaders, who believe it’s legal to change song lyrics or “Christiantize” words to popular secular songs, and cite the Fair Use
doctrine of the U.S. Copyright Law as their defense. Some church leaders also believe it’s OK to add or change lyrics to a Christian song without first asking permission. They’ll often use the term “parody,” when in fact the simple act of
changing lyrics does not constitute a parody.

It’s important to note that Fair Use and parody are used as a defense in a copyright infringement case. In other words, the only way you find out if your unauthorized use of an original copyright is considered Fair Use if you and your organization are being sued for copyright infringement, as DeVore discovered. So, it’s vital that church leaders understand whether or not they are truly creating a parody.

Let’s look at what constitutes a parody. Lloyd L. Rich wrote an excellent article on fair use in which he states:

A parody imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect. As a method of criticism, parody is a very popular means for authors, entertainers and advertisers to communicate a
particular message or point of view to the public. A parody must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized,
made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.

When I teach or consult with churches, questions often arise about the following common activities:

1) Videos or multimedia presentations created with third party copyrighted song
lyrics they have adapted to fit their theme or topic (very similar to DeVore’s
lyric changes);

2) New lyrics or modified lyrics that have been made to copyrighted Christian
songs (such as adding a new verse to “Indescribable” by Laura Story ;

3) “Christianized” lyrics replacing original lyrics to a secular song.

In all of these cases, permission was not requested from the original copyrighted owner. Changing or modifying lyrics creates a derivative work based on the original work. The derivative is one of six exclusive rights belonging to the song copyright owner and therefore requires prior permission from the owner in order to make changes. The only exception is if you believe you have a strong case for Fair Use.

For your reference: “The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as Fair Use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event.”

One aspect of my personal mission is to provide the Christian community with copyright education and help protect churches from copyright liabilities. If churches are better informed about what does and does not qualify as a parody and Fair Use, then I believe they are equipped to make wise decisions when considering changing or adapting original copyrighted works.

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Posted by CopyrightSolver on Jul 26 2010. Filed under Copyright News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry