Butting In
South Park was sued for copyright infringement for its parody of Samwell's video "What What (In The Butt)." A federal judge just cleared the show, in summary judgment, claiming the parody was covered by the fair use exception. In general, I like wide berth for parody, but I have to admit, even for a fair use fan like me, this is a tough case.
Fair use is actually a vague and ill-defined concept. It's easy for a judge to bend the rules in either direction. Here are the four factors to be considered:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
There's no question South Park's use was of a commercial nature, but for a parody we have to ask if it was tranformative or derivative. Copyright law is there to spur creativity, not stifle it. More on that in a second.
The judge--according to the article which I might be misreading or which might have gotten it wrong--declared the video wasn't a substantial part of the show (does that matter?--shouldn't it matter whether the parody takes a substantial part of the original) and that it won't hurt the original's market (probably right, but how does he know?). He also has a cheap crack at the original, stating the parody is clearly a "lampoon" of "the recent craze in our society of watching video clips on the internet that are -- to be kind -- of rather low artistic sophistication and quality." So if the judge believed the video were more sophisticated and of higher quality, he'd give it more protection? Even if that makes sense I'm wary of judges making that call. (Though I can sort of see it--a sophisticated Cole Porter tune gets more protection than a less sophisticated 12-bar blues.)
He also declared the video transformative by accomplishing "the seemingly impossible -- making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits.” This strikes me as another cheap crack, but also, aside from replacing the original singer with Butters from South Park, there's not that much change. They stuck to the original tune (or "tune") and words and even look and choreography. I get that that's the point, but just how close can you be before you infringe on copyright?
Judge for yourself:
You'll note the South Park video does not come from YouTube. That's because if YouTube put it up, they would be sued for copyright infringement.
posted by LAGuy @ 12:02 AM
23 Comments:
You're a moron. You have to use the original work to parody it. If they took out the "tune" or the "dance moves" how do you parody the work? Either you believe in free speech or you don't. Judge was dead on in a rather easy case.
Parodies usually start with the original and change it enough to create a comic reflection of sorts. The fair use question deals with is the change sufficiently transformative so it's not copyright infringement. There have been cases on this point for decades. If Butters sings "Hey Jude," note for note, for seven minutes, it might be amusing, but it would also mean South Park has to pay royalties.
Did you even read the order of the Judge before posting this?
I read the article that I linked to, and watched the videos. I don't have to read the judge's order to figure out what I think about potential copyright infringement.
You don't think you have to read the underlying order before commenting on the order?
I am commenting on a claim of copyright infringement. That the judge just released his order was a useful hook on which to hang the post, but it was hardly necessary for my analysis.
By the way, I noted some questionable statements from the judge, but I didn't say he was wrong. I just said it was a close case.
I'm confused. Do you disagree that this was a parody or disagree that its fair use?
I agree with the other post-- you can't really say a comment is questionable if you don't read it in context. Seems like this was a pretty simple case-- if its not fair use, there's some huge First Amendment problems facing this court.
Something being a parody does not protect it from copyright lawsuits. If a parody is too close to the original, is too derivative, the fair use argument will not prevail. You have to look at the original and the parody and decide, usin the four prongs of the fair use test, if it is allowable. It seemed to me in this case--and I could look at the exact same evidence the judge did--that South Park changed the original very little.
Has there ever been a case where something was a parody-- i.e. commenting on something through the use of the original work -- that was found to not be a fair use? If the work's purpose is for commentary, the First Amendment would trump any fair use claim. Do you disagree?
I'm not sure what South Park could have done less than what they did without eviscerating their message. The clip ran for less than a minute, was a cartoon, used a different character, and changed the message of the song to poke fun of it. I'm still confused why you think this is close.
The reason I think it's close is because of what I posted--same words, same rhythm, same dance, same look.
In fact, parodies regularly fail the fair use test. A classic example taught in law school is the Jack Benny parody of Gaslight, which went all the way to the Supreme Court. You can read about it at http://chart.copyrightdata.com/c16D.html
The Jack Benny case has been all but written out of the law.
The 9th Circuit-- same court that you cite -- overruled that decision in 1986.
"There have been few cases in this circuit involving the parody branch of the fair-use doctrine. An early case, Benny v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956), aff'd by an equally divided Court, 356 U.S. 43, 78 S. Ct. 667, 2 L. Ed. 2d 583 (1958), n3 held that "'a parodized or burlesqued taking [was] to be treated no differently from any other [copyright] appropriation,'" id. at 537 (quoting lower court opinion, 131 F. Supp. 165, 183 (S.D. Cal. 1955)). This decision was criticized by contemporary commentators, see Berlin v. E.C. Publications, Inc., 329 F.2d 541, 544-45 (2d Cir.) (listing critiques), cert. denied, 379 U.S. 822, 85 S. Ct. 46, 13 L. Ed. 2d 33, 144 U.S.P.Q. (BNA) 464 (1964), and was essentially repudiated by Congress's recognition of parody in the notes to the Copyrights Act of 1976.
Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986)
It's true, Jack Benny's parody would be okay today. But anyone who uses too much of an original song in a parody is taking a chance.
Where's your authority for that claim? Does any case say that?
Frankly, what parody to you isn't a close case? Every parody has to use the original work in some way. Was Campbell a close case?
Good debate guys! I think you two miss the point though; the main issue isn't how much the two works are similar, but how transformative the second work is. In the case of a parody, which I don't think anyone can argue the South Park case is, the parody transforms the first work into a work criticizing the first.
Ooops--- meant "isn't"-- I think its a parody.
Yes, this argument has gone on longer than most on this blog.
Anyway, I have studied law, and certain parts of intellectual property are pretty straightforward (though particular cases can get tricky). Copying a song in any way, even for parody purposes, automatically brings up questions of copyright infringement. American courts (and other courts, I assume--I only studied American law) give a lot of room for parodies, but remember, fair use is a defense that has to be proved, not an umbrella that protects anything you call a parody.
Generally, if you flat out perform someone else's song, even for comedic purposes, you have to pay royalties. Anyone who uses the same words and melody of an orignal tune, especially for commercial purposes, has to prove fair use covers the performance. This is one reason you often get parody tunes that conjure up the feeling of the original without being the original note for note.
You concede Jack Benny's parody would "be okay" today. How is that any different than what South Park did? It seems like your interpretation of what is okay under the copyright act and what's not depends on whether its music or not. Seems really arbitrary to me given the Campbell precedent (cited in the website you sent the link to) where 2 Live Crew lifted as many lines from Roy Orbison's song as South Park did from this song. Unless you think Campbell is bad law or should have been otherwise ignored by the court, how is this a close case?
Every case of fair use is a judgment call. The closer you are to the original the more likely your use will be considered derivative. South Park's use was practically Butters singing someone else's song.
In the 2 Live Crew case, they changed the words and didn't sing the same melody, though they did use parts of the song and definitely did their song based on the original. The Supreme Court case dealt with specific issues. First, note, it was overturning the appeals court, which found for Acuff-Rose music, and the specific point being dealt with was how important the commercial purpose of the parody was in fair use. The lower court said the commercial purpose of 2 Live Crew's song made it presumptively unfair, but the Supreme Court said that didn't settle the issue. It then went on to note every such copyright infringement controversy must be settled on a "case by case basis."
2 Live Crew had requested the use of the song "Pretty Woman" and Acuff-Fose denied them. After the case was remanded, the two parties settled, so don't forget, 2 Live Crew did have to pay for the use of the song.
Didn't use the same melody? http://www.youtube.com/watch?v=65GQ70Rf_8Y
Used the same rhythm, which is what counts. In any case, it's not really about the song. The infringement case is specifically about the video. It uses the same song, copies the "set," some shots and the choreography.
Just because the two sides settled and didn't want to take discovery on the fair use issue doesn't imply that Campbell would have been a close case on remand. The fact that the record company settled so quickly is evidence to the contrary.
How about the case of Family Guy for its use of the Disney song "When you wish upon a star?"? Was that a close case too?
Seems like you're missing the point-- use of a work is a necessary prerequisite to fair use.
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