Can you make a fair-use instrumental parody song? If so, how? (& related questions)

[SeekerSpeaker]

Can you make a fair-use instrumental parody song? If so, how? (& related questions)

Hello,

I was hoping to receive some feedback about a parody project am I planning, and whether or not I have grounds for fair use of the music portion of it. Specifically, what I am looking to do is create an 8-bit, retro-style video game parody of a TV show and want to appropriately parody the tv show's original, instrumental music in an 8-bit fashion for use in the game.

I believe my plan for the story/characters/gameplay elements will align nicely with laws regarding parody and fair use, but the music parody aspect has me looking for council and, hopefully, reassurance. My question is, would creating 8-bit, NES-style music parodies of the show's original musical themes constitute as fair use, exonerating me from having to receive permission from the music copyright holder? You see, I am afraid of asking the music publisher for permission because they might say no or request an amount of money that isn't feasible for this low (pronounced "no")-budget, fan initiative. I am afraid to put tons more work into the project only to be asked (threatened) to take the game download/stream offline due to the similarities in the music content. I know that parody is protected under fair use, but do my music plans sound like they'll be protected under fair use?

Regarding the music parodies themselves, I would start with a pretty faithful cover of the source material (to elicit the tone of the tv show's original music and make the reference clear), only I would be using an extremely limited palate of sounds to emulate the original NES video game console hardware (only four, mono synth voices). I would be turning music composed of organic string and piano instruments, as well as a whole range of traditional instruments, into a limited four-voice 1980's-era, sound-card composition. I would then change the melodic rhythm patterns and program some creative arrangement tricks to make the music more closely resemble the hardware limitations of an NES game. Chords will be expressed with single note leads, while perhaps one or two omitted chord notes could be expressed in a supporting rhythmic pattern. The 'joke' or 'parody' aspect of these music covers would be in the expression, context and instrumentation of the music. By imposing recording limitations of obsolete 1980's computer hardware, in addition to introducing new musical elements such as rhythm, timbre, tempo and original arrangement transitions, the intent of the music (on its own and especially within the context of the parody game) would be to parody the original music in a sci-fi and retro-video-game style (of which, the music is neither) and would not attempt to compete with the original music or pass as a wholly original work. Would such instrumental music parody be considered transformative enough to be considered fair use?

Is there any precedence of the factors that constitute a fair-use parody of an instrumental song? If changing the lyrics and intent of a pop song is a pretty standard formula to define fair-use of a parody song with vocals, how could a fair-use parody of a piece of instrumental music be defined? The music parody formula should not be exclusive to representation with lyrics. Have there been any related court decisions that can be referenced to help define an instrumental parody?

Could a relaxing classical movement parodied in a hardcore rap or metal style so long as the parody doesn't attempt to be passed as anything other than a transformative work (I'm not talking about using music samples, but rather, new recordings)? Could a classic science fiction musical piece be covered in a western-cowboy motif in an expression and context that is clearly parody and be considered a fair use?

Also, how much might financial gain weigh into a ruling of this type of situation? Could someone expect to sell western-cowboy-style parodies of Star Wars music without permission from the Star Wars property? I must admit, I think litigation would follow quickly in that example. Going back to my scenario, do you think my music parody within my video game parody would be fair use if the game I made was online and free for all to play and/or download? Essentially, I want to make a game for fans of the tv show and video game genre. If I can't expect to sell this game for profit (which I'm not holding my breath for), I'd still very much like to make it for all to enjoy. I would, however, like to run a Kickstarter campaign to assist with making the game a reality. Does anyone think I could get away with a Kickstarter campaign to raise development/creation capital to make a free-to-play game that pledges to include parody music based on the show's music, or would I be a pretty big target, just asking for trouble (again, only regarding the music)? I think I would prefer to go the free-for-all, Kickstarter route, as I suspect it might be easier to ask for forgiveness rather than permission (though I'd be crushed if I had my Kickstarter campaign cut short due to the embedded music examples I would include on my campaign page as a preview of what would be included in the full game). Any advice, thoughts or predictions regarding my Kickstarter plans?

Assuming that a parody song is fair use, and therefore permission from the music copyright holder wasn't needed for creation, would one still need a mechanical license to distribute the fair-use parody song? What about a sync license to sync the fair-use parody song to video or video game? In other words, if someone records a song parody that is safely considered to be fair use, and therefore did not require the original owner's permission to create it, would mechanical and sync licenses still be necessary to distribute and sync the fair-use parody song, or does the fact that it is fair use kind of exonerate it from requiring one or both of those licenses related to the original work?

I know that I rattled on about a range of topics. I hope I painted a clear enough picture of my situation and my law-understanding gray areas. Thanks for any and all information, advice and related discussion! I've done my fair share of internet research, but couldn't find clear answers to these questions. I understand that law isn't always a clean cut, but I appreciate very much any conversation that can emanate from this post! How would you proceed if you we're me? I can't thank you enough for your time!

 

[quincy]

. . . My question is, would creating 8-bit, NES-style music parodies of the show's original musical themes constitute as fair use, exonerating me from having to receive permission from the music copyright holder?. . . . I know that parody is protected under fair use, but do my music plans sound like they'll be protected under fair use?

. . . Would such instrumental music parody be considered transformative enough to be considered fair use?

Is there any precedence of the factors that constitute a fair-use parody of an instrumental song? If changing the lyrics and intent of a pop song is a pretty standard formula to define fair-use of a parody song with vocals, how could a fair-use parody of a piece of instrumental music be defined? The music parody formula should not be exclusive to representation with lyrics. Have there been any related court decisions that can be referenced to help define an instrumental parody?

Could a relaxing classical movement parodied in a hardcore rap or metal style so long as the parody doesn't attempt to be passed as anything other than a transformative work (I'm not talking about using music samples, but rather, new recordings)? Could a classic science fiction musical piece be covered in a western-cowboy motif in an expression and context that is clearly parody and be considered a fair use?

Also, how much might financial gain weigh into a ruling of this type of situation? Could someone expect to sell western-cowboy-style parodies of Star Wars music without permission from the Star Wars property? I must admit, I think litigation would follow quickly in that example. Going back to my scenario, do you think my music parody within my video game parody would be fair use if the game I made was online and free for all to play and/or download? . . . Does anyone think I could get away with a Kickstarter campaign to raise development/creation capital to make a free-to-play game that pledges to include parody music based on the show's music, or would I be a pretty big target, just asking for trouble (again, only regarding the music)? I think I would prefer to go the free-for-all, Kickstarter route, as I suspect it might be easier to ask for forgiveness rather than permission (though I'd be crushed if I had my Kickstarter campaign cut short due to the embedded music examples I would include on my campaign page as a preview of what would be included in the full game). Any advice, thoughts or predictions regarding my Kickstarter plans?

Assuming that a parody song is fair use, and therefore permission from the music copyright holder wasn't needed for creation, would one still need a mechanical license to distribute the fair-use parody song? What about a sync license to sync the fair-use parody song to video or video game? In other words, if someone records a song parody that is safely considered to be fair use, and therefore did not require the original owner's permission to create it, would mechanical and sync licenses still be necessary to distribute and sync the fair-use parody song, or does the fact that it is fair use kind of exonerate it from requiring one or both of those licenses related to the original work? . .

. . . How would you proceed if you we're me?. .

Wow! A lot of questions!!

To start with your title question, the answer is "Yes, it is possible to make a fair-use instrumental parody song." The how is not quite as easy to answer, but it helps to have a parody that is SO GREAT and that the copyright holder likes SO WELL that s/he doesn't want to sue. It also helps to have an excellent legal defense team and a lot of money.

A leading Supreme Court case on musical parody is Campbell v Acuff-Rose, 510 U.S. 569 (1994). What must be determined with a parody is if the parody has added "something new, with a further purpose or different character altering the first with new expression, meaning, or message" or, in other words, if the new work has transformed the old work.

It is not easy to determine what is parody and what is not. There are tests that a court looks to in making a determination. A court will look at the purpose and character of the use (including whether it is educational, non-profit, commercial), and a court will look at the nature of the copyrighted work being parodied, and a court will look at the amount and substantiality of the portion of the copyrighted work used in the parody as it relates to the whole, and a court will look at the effect of the parody on the market (or potential market) or the value of the copyrighted work.

It is important to remember with fair use (under which parody falls) that fair use is an affirmative defense to copyright infringement and not permission to use copyrighted material. If a copyright holder takes exception to the use of his/her work and sues, fair use parody could be used as a defense. It would be up to a court to determine if the fair use defense will defeat an infringement suit.

For two fairly recent examples of suits that used fair use parody as successful defenses, both "Family Guy" and "South Park" were sued over musical parodies. In the "Family Guy" suit, the Fox episode "When You Wish Upon a Weinstein" parodied the Bourne Company's "When You Wish Upon a Star" and "I Need a Jew" copied the song from "Pinnocchio." Although TO ME the musical parodies that led to these suits were obvious clear parodies, the rights-holders did not think so. Long and costly law suits resulted.

The difference between the parodies done for these tv shows that led to lawsuits and the parodies done by Weird Al Yankovic that never have is that Weird Al has always sought out and received permission to parody copyrighted works. When the copyright holder refuses to give permission to use his copyrighted work, Weird Al refuses to parody it.

You CAN use music that is in the public domain and parody it without problem, however (as long as you create your own music and do not rely on someone else's copyrighted interpretation of the work). For example, Albert Brooks famously parodied Ravel's "Bolero" (Brooks added lyrics that, had Ravel not been long-dead, would almost certainly have led to a multi-cause lawsuit ).

SO, to answer your final question of "How would you proceed if you were me?" - I would get permission to use any copyrighted work prior to using it. I would acquire proper licenses. And I would not rely on a fair use defense to help me through a lawsuit that I could ill-afford to defend against. I would probably also have any work I created reviewed by an IP attorney prior to publication, and take out insurance enough to cover any lawsuit, should all of my precautions fail to protect me sufficiently. But then, I am awfully risk-averse.

Good luck to you.

 

[SeekerSpeaker]

Thank you so much for the generous reply!

The 2Livecrew parody of pretty woman had their case helped because of the considerable amount of original lyrics added to the song. The Family Guy parody of the Pinnochio song also contained entirely new, parody lyrics that helped imply its 'different message.' I was hoping there was a greater precedent of a parody instrumental which contained no lyrics and was still determined to be fair use. Having unique lyrics over an otherwise blatant rip off of a song seems to be the magic bullet for establishing parody, when I want to put effort into truly transforming the arrangement, theme, and style of instrumental music as a fair use parody to help sell the idea of an overall parody.

I know that I could likely receive a mechanical license to make and distribute a music CD of the music (supposedly, anyone can receive this license), and I would pay something like 10 cents per song, per distribution. But since I want to ultimately sync these parodies to the video game, I am afraid of the potentially large fees and harsh decisioning of granting sync licenses for my project. I was hoping that obvious fair-use parody music wouldn't require sync licenses since, as a defense at least, parodies to not require the permission of the copyright owner. Is there any truth to my logic regarding parodies and sync licensing?

Also, I read up on the South Park suit over the parody video of the Samwell song, and apparently the significance of that ruling in South Park's favor was that the district court ruled for fair use, not as a defense, but immediately, without going to trial.

 

[quincy]

Thank you so much for the generous reply!

The 2Livecrew parody of pretty woman had their case helped because of the considerable amount of original lyrics added to the song. The Family Guy parody of the Pinnochio song also contained entirely new, parody lyrics that helped imply its 'different message.' I was hoping there was a greater precedent of a parody instrumental which contained no lyrics and was still determined to be fair use. Having unique lyrics over an otherwise blatant rip off of a song seems to be the magic bullet for establishing parody, when I want to put effort into truly transforming the arrangement, theme, and style of instrumental music as a fair use parody to help sell the idea of an overall parody.

I know that I could likely receive a mechanical license to make and distribute a music CD of the music (supposedly, anyone can receive this license), and I would pay something like 10 cents per song, per distribution. But since I want to ultimately sync these parodies to the video game, I am afraid of the potentially large fees and harsh decisioning of granting sync licenses for my project. I was hoping that obvious fair-use parody music wouldn't require sync licenses since, as a defense at least, parodies to not require the permission of the copyright owner. Is there any truth to my logic regarding parodies and sync licensing?

Also, I read up on the South Park suit over the parody video of the Samwell song, and apparently the significance of that ruling in South Park's favor was that the district court ruled for fair use, not as a defense, but immediately, without going to trial.

When you look at licensing fees and then you look at the costs you would incur if you are sued, the licensing fees seem nominal in comparison.

For a good musical parody case to review, you can take a look at Fisher v Dees, 794 F.2d 432 (9th Cir 1986), which was over "When Sonny Sniffs Glue," a parody of the song "When Sonny Gets Blue." The Court said that "a parody is entitled at least to 'conjure up' the original." Several cases cited in this court decision are worth checking out, too. A link to the Court decision: http://openjurist.org/794/f2d/432/fisher-v-dees.

You may also want to look at Three Boys Music Corp v Bolton, 212 F.3d 477, Ct of Appeals, 9th Cir, 2000, and Swirsky v Carey, 376 F.3d 841, 9th Cir, 2004, for suits that have good discussions on musical composition infringement. These are not a musical-parody cases, however. They center on "substantial similarity" in cases where the defenses are based on "independent creation." Link: http://openjurist.org/376/f3d/841/swirsky-v-carey.

As a note on the infringement lawsuit filed by Brownmark Films against South Park/Viacom, over the Samwell "What What (In the Butt)" song: Even though the suit was eventually dismissed, it took a lot of time and cost a lot of money to get to that dismissal.

The South Park episode that parodied the WWITB video ("Canada on Strike") aired in 2008, the suit was filed by Brownmark in 2010, decided in July of 2011, and the 7th Circuit Court of Appeals heard the case in 2012. The July 6, 2011, court decision found that Brownmark had standing to sue but it also found that Viacom's defense of fair use could be addressed at the pleading stage, which is a rare decision.

It was this unusual decision that allowed the court to rule on fair use prior to trial, finding the South Park video a "clear" parody and dismissing Brownmark's action (although Brownmark appealed). Viacom filed a motion for attorney fees and costs in August of 2011, which the court granted in part. Viacom requested $46,775.23 and the court awarded Viacom under $31,525.23.

So, even winning a lawsuit can be time-consuming and costly. That is why I recommend you get proper licensing and permission or, at the very least, have an IP attorney review your work prior to publication.

Good luck.

 

[SeekerSpeaker]

Thank you so much for the thoughtful replies, Quincy!

I really, really appreciate the time you've taken to cite various cases to assist me. I will look into these cases, and as per your advice, likely talk to an attorney before launching anything. I suppose I could also just bite the bullet and try to ask the artist management company for the publisher info so that I can request the cost for sync licenses. Maybe it won't be so bad? Probably not as bad as a lawsuit, as you mentioned. I want to make sure I ask the correct way, as to not somehow incriminate myself later in case an attorney confirms a route I can take that should be safe for me without such a license. I'll have to google how sync licenses typically work and how to request them. I definitely don't want years of trouble, which I why I came here to ask. It's just that there are so many fan tributes out there that are seemingly able to exist without any litigation.

Thanks again, I'm going to check out those cases!

 

[FlyingRon]

Much as I told you on the other board, merely asserting something is parody when you want to steal it does not make it so. In fact, you're not parodying things at all, but using the famous composition for your personal and commercial gain. It's not fair use in the least. You must parody the song directly. Just introducing it in an otherwise parody has already been shown to NOT be fair use (I gave you the case site in the other forum).

You can read Quincy's citations if you like, but when you come down to analyzing what he has said, he hasn't given you any more hope than we told you over on EL.

 

[quincy]

Thank you so much for the thoughtful replies, Quincy!

I really, really appreciate the time you've taken to cite various cases to assist me. I will look into these cases, and as per your advice, likely talk to an attorney before launching anything. I suppose I could also just bite the bullet and try to ask the artist management company for the publisher info so that I can request the cost for sync licenses. Maybe it won't be so bad? Probably not as bad as a lawsuit, as you mentioned. I want to make sure I ask the correct way, as to not somehow incriminate myself later in case an attorney confirms a route I can take that should be safe for me without such a license. I'll have to google how sync licenses typically work and how to request them. I definitely don't want years of trouble, which I why I came here to ask. It's just that there are so many fan tributes out there that are seemingly able to exist without any litigation.

Thanks again, I'm going to check out those cases!

You're welcome, SeekerSpeaker.

I think you will be wise to have your plans personally reviewed by an attorney in your area. Specific facts matter in law. And, with your special concerns, a personal review can be even more important.

While instrumental music can drive a parody and set the tone, place and time, instrumentals are harder to parody on their own (although not impossible).

Fair use is already a tricky area of copyright law and parody is often a tricky area of fair use, as the cases I cited show. What you may see as parody, a copyright holder may see as infringement - and then it will be up to a court to decide where your work falls. You want to avoid court if at all possible. An attorney's review of the specifics can help you do this.

As to music synchronization licenses, there is generally a flat fee for a license and often terms of a license can be tailored to your needs.

Again, I wish you good luck.



(I was a lot nicer, though, FR )

 

[ecmst12]

Part of the reason that South Park got sued is that millions of people watch it, and it makes lots of money. Stuff that has a small user-base and doesn't make a lot of money is *less* likely to attract big lawsuits - but if you are sued, it's going to hurt you a lot more than it's going to hurt a huge corporation.