The Intellectual Property Law Server

Welcome, Guest. Please Login or Register.
Jun 16th, 2019, 1:33am

Forums Forums Help Help Search Search Members Members Calendar Calendar Login Login Register Register
   Intellectual Property Forums
   Other
   Copyright Forum
(Moderators: Forum Admin, JimIvey, JSonnabend)
   Derivative works and parody
« Previous topic | Next topic »
Pages: 1  Reply Reply Send Topic Send Topic Print Print
   Author  Topic: Derivative works and parody  (Read 2545 times)
thesuperav
Newbie
*




   


Posts: 1
Derivative works and parody
« on: Jun 28th, 2006, 11:08pm »
Quote Quote Modify Modify

Our band has been creating an album based on the public domain songs and some songs under copyright. However our spin on it is that since we're a comedy band, we've rewritten the lyrics, but kept along the lines of the same theme. In regards to the copyright songs, we've created our own arrangements (but same song structure), own comical lyrics and song titles (but based on the original theme), and used the same melody. Do you think this would consititute a parody (as opposed to a derivative work)?
 
We were willing to licence the three songs under copyright, and asked for permission from the original copyright holders, but we were denied for one of our songs, and the other two are still undecided.
 
Would we be breaching copyright if we were to go ahead with the songs? There have been cases that claim fair-use in with their parody (http://www.publaw.com/parody.html for a start). But I guess it would come down to if our songs constitute a parody of the original work.
IP Logged
Isaac
Senior Member
****




   


Posts: 3472
Re: Derivative works and parody
« Reply #1 on: Jun 29th, 2006, 7:10am »
Quote Quote Modify Modify

Parody is part of a fair use defense, but it is not a get out of jail free card.  Some parodies won't be considered fair use.
 
I don't think it makes sense to make a distinction between a derivative and a parody.   Essentially all real parodies are derivative works.   The question is whether fair use is a successful defense to not getting the original author's permission.
 
IMO the linked to article overstates the Supreme Court's holding in Acuff Rose.   The Supreme Court's decision was essentially that the commercial nature of the parody did not preclude 2 Live Crew's use of Pretty Woman from being fair use.
« Last Edit: Jun 29th, 2006, 7:26am by Isaac » IP Logged

Isaac
Bill Richards
Full Member
***




   
WWW Email

Posts: 758
Re: Derivative works and parody
« Reply #2 on: Jun 29th, 2006, 9:15am »
Quote Quote Modify Modify

Too, the Acuff-Rose decision only said that the work might amount to fair use.  The Court of Appeals had made several errors of law that were to be covered on remand.  (I don't recall ever reading what happened on remand.)  The common take is that the work was fair use, but I don't recall that was ever decided.  In addition, I believe the music must be treated separately from the words.
IP Logged

William B. Richards, P.E.
The Richards Law Firm
Patents, Trademarks, and Copyrights
614/939-1488
mactheknife
Full Member
***




   


Posts: 110
Re: Derivative works and parody
« Reply #3 on: Jun 29th, 2006, 1:06pm »
Quote Quote Modify Modify

on Jun 29th, 2006, 7:10am, Isaac wrote:

IMO the linked to article overstates the Supreme Court's holding in Acuff Rose.   The Supreme Court's decision was essentially that the commercial nature of the parody did not preclude 2 Live Crew's use of Pretty Woman from being fair use.

 
Doesn't Acuff-Rose go beyond this, though?  My understanding of the holding was the more transformative a work is (as it went on to describe why a parody may be transformative), the less important the commercialism in the work may be.  That's a bit different than "commercialism doesn't automatically = non-fair use."
 
That said, I also have seen cases saying that there's a difference between a "parody" which comments on or criticizes the original work and a "satire" or something which simply uses the original work to be funny.  So I'd agree that crying 'parody' does not give you the green light to use a preexisting copyrighted work in that fashion.
IP Logged
Isaac
Senior Member
****




   


Posts: 3472
Re: Derivative works and parody
« Reply #4 on: Jun 29th, 2006, 2:39pm »
Quote Quote Modify Modify

on Jun 29th, 2006, 1:06pm, mactheknife wrote:

 
Doesn't Acuff-Rose go beyond this, though?  My understanding of the holding was the more transformative a work is (as it went on to describe why a parody may be transformative), the less important the commercialism in the work may be.  That's a bit different than "commercialism doesn't automatically = non-fair use."

 
Without rechecking, I think your analysis sounds correct, but doesn't it just lead to what I cited as the Courts conclusion?  The court explored more than one reason why commercialization does not equal fair use with the point being that short circuiting the analysis by pointing to commercial use as the lower court appeared to do was incorrect.
 
Quote:

That said, I also have seen cases saying that there's a difference between a "parody" which comments on or criticizes the original work and a "satire" or something which simply uses the original work to be funny.  So I'd agree that crying 'parody' does not give you the green light to use a preexisting copyrighted work in that fashion.

 
I think you can draw that out of Acuff Rose as well.  The Court suggested that parody "requires" taking enough form the original to evoke the original in the mind of the listener in order to comment on the original and so in the case of parody a larger taking of the original is justified.   Satirical work on the other hand was simply using one persons work to address a different topic and doing so does not justify as much copying.
 
For satire it might also be true that being more transformative does not lead to a greater indication of fair use.   Maybe.  
 
I think we are just disagreeing about what constitutes the essence of Acuff Rose and not differing so much about what the case says.
IP Logged

Isaac
Pages: 1  Reply Reply Send Topic Send Topic Print Print

« Previous topic | Next topic »
Powered by YaBB 1 Gold - SP 1.3.2!
Forum software copyright © 2000-2004 Yet another Bulletin Board