Last week the “We con the world” video by the Latma.com team (lama she-tit`atzben levad/why should you get aggravated by yourself?) became a viral success. Following complaints by Warner Music for copyright infringement, YouTube took down the video, only to be rewarded for its effort by dozens of copies elsewhere (including on PJTV.com and on YouTube itself [example]).
Clearly, YouTube has never heard of the parody defense — this type of parody for nonprofit (in this case, political) purposes has long been recognized as “fair use” in US jurisprudence.
Turns out, there is even a Supreme Court ruling that explicitly recognizes even for-profit parodies as fair use:
The story in brief: the rap group 2 Live Crew requested permission to record a parody of Roy Orbison’s classic “Pretty woman”. Permission being denied, they went ahead and recorded one anyhow, adding their trademark raunchy lyrics. Only after the recording became a hit were they sued. Eventually, the case made its way to SCOTUS.
The court found unanimously for 2 Live Crew. Under US copyright law, four criteria determine whether “fair use” applies:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The Supreme Court then found the aforementioned factors must be applied to each situation on a case by case basis. ‘”The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”
When looking at the purpose and character of 2 Live Crew’s use, the Court found that the more transformative the new work, the less will be the significance of the other three factors. The court found that, in any event, a work’s commercial nature is only one element of the first factor enquiry into its purpose and character, quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417. The Supreme Court found the Court of Appeals analysis as running counter to this proposition.
Justice Souter then moved onto the second § 107 factor, “the nature of the copyrighted work”, finding it has little merit in resolving this and other parody cases, since the artistic value of parodies is often found in their ability to invariably copy popular works of the past.
The Court did find the third factor integral to the analysis, finding that the Court of Appeals erred in holding that, as a matter of law, 2 Live Crew copied excessively from the Orbison original. Souter reasoned that the “amount and substantiality” of the portion used by 2 Live Crew was reasonable in relation to the band’s purpose in creating a parody of “Oh, Pretty Woman“. The majority reasoned “even if 2 Live Crew’s copying of the original’s first line of lyrics and characteristic opening bass riff may be said to go to the original’s ‘heart,’ that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.
Looking at the final factor, the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm (such as there had been in Sony). Parodies in general, the Court said, will rarely substitute for the original work, since the two works serve different market functions.
A case could be made that the 2 Live Crew version is a crime against music: however, it is not the function of the courts to regulate taste. The point of all this: if a parody defense was successful in this case, a fortiori the “We con the world” video should not have been a problem.
Quite amusingly, the majority opinion has the lyrics of both the original and the parody attached. Thus the “2 Live Crew”s sophomoric doggerel can be found in any major law library 🙂