Using parody as a loophole for samples/remixes?

[jay_jizle]

[Disclaimer] This is a little long-winded, but bear with me because I would like opinions on it from other people, especially those that have knowledge of the music-legal workings.

So I just had this thought and looked into it a bit...

I was listening to a song my artist did to Dr. Dre's "Crack A Bottle" instrumental. Yeah it's silly, but that's what got me thinking...

People like Weird Al Yankovic have made a good living off doing goofy parodies for many, many moons due to current copyright law, so what's stopping me from just classifying that song as a parody and not worry about getting blocked from sites or getting sued?

First I gotta get the boring stuff out the way...dictionary definitions. The definition of parody varies a bit from dictionary to dictionary on the net (my go-to merriam-webster seems to be down atm or my internet is acting up...). I can't find a music-legal definition at the moment, but I'd bet that it varies a bit depending on the context.

wiki definition - http://en.wikipedia.org/wiki/Parody

A parody (pronounced /ˈpærədiː/; also called send-up or spoof), in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.

From the "Copyright Issues" heading of the same wiki...

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected from claims by the copyright owner of the original work under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. See Campbell v. Acuff-Rose Music, Inc.

In 2001, the United States Court of Appeals, 11th Circuit, in Suntrust v. Houghton Mifflin, upheld the right of Alice Randall to publish a parody of Gone with the Wind called The Wind Done Gone, which told the same story from the point of view of Scarlett O'Hara's slaves, who were glad to be rid of her.

Under Canadian law, although there is protection for Fair Dealing, there is no explicit protection for parody and satire. In Canwest v. Horizon, the publisher of Vancouver Sun launched a lawsuit against a group which had published a pro-Palestinian parody of the paper. Alan Donaldson, the judge in the case, ruled that parody is not a defense to a copyright claim.[1]

Notice I bolded 'comment on' in both the definition and Supreme Court statement, I'll get to that in a second...

dictionary.com definition - http://dictionary.reference.com/browse/parody

par⋅o⋅dy
  /ˈpærədi/ Show Spelled Pronunciation [par-uh-dee]
plural -dies, verb, -died, -dy⋅ing.
–noun
1. a humorous or satirical imitation of a serious piece of literature or writing: his hilarious parody of Hamlet's soliloquy.
2. the genre of literary composition represented by such imitations.
3. a burlesque imitation of a musical composition.
4. any humorous, satirical, or burlesque imitation, as of a person, event, etc.
5. the use in the 16th century of borrowed material in a musical setting of the Mass (parody Mass).
6. a poor or feeble imitation or semblance; travesty: His acting is a parody of his past greatness.
–verb (used with object)
7. to imitate (a composition, author, etc.) for purposes of ridicule or satire.
8. to imitate poorly or feebly; travesty.

Origin:
1590–1600; < L parōdia a parody < Gk parōidía a burlesque song or poem. See par-, ode, -y 3

Burlesque is used twice and is the origin of the word, so what does that really mean? I think of topless dancers in a line doing synchronous high kicks when I hear it...

bur⋅lesque
  /bərˈlɛsk/ [ber-lesk]
adjective, verb, -lesqued, -lesquing.
–noun
1. an artistic composition, esp. literary or dramatic, that, for the sake of laughter, vulgarizes lofty material or treats ordinary material with mock dignity.
2. any ludicrous parody or grotesque caricature.
3. Also, bur⋅lesk. a humorous and provocative stage show featuring slapstick humor, comic skits, bawdy songs, striptease acts, and a scantily clad female chorus.
–adjective
4. involving ludicrous or mocking treatment of a solemn subject.
5. of, pertaining to, or like stage-show burlesque.
–verb (used with object)
6. to make ridiculous by mocking representation.
–verb (used without object)
7. to use caricature.

Origin:
1650–60; < F < It burlesco, equiv. to burl(a) jest (perh. < Sp; cf. burladero ) + -esco -esque

Related forms:
bur⋅lesque⋅ly, adverb
bur⋅lesqu⋅er, noun

Synonyms:
1. satire, lampoon, farce. Burlesque, caricature, parody, travesty refer to the literary or dramatic forms that imitate serious works or subjects to achieve a humorous or satiric purpose. The characteristic device of burlesque is mockery of both high and low through association with their opposites: a burlesque of high and low life. Caricature, usually associated with visual arts or with visual effects in literary works, implies exaggeration of characteristic details: The caricature emphasized his nose. Parody achieves its humor through application of the manner or technique, usually of a well-known writer, to unaccustomed subjects: a parody by Swift. Travesty implies a grotesque form of burlesque: characters so changed as to produce a travesty.

Whew, sorry bout that but definitions are a go-to for lawyers in a pinch...I just wanted to establish that the definitions are largely based upon satire (that means humor for the short-bussers).

Soooooo get to the point...

This could extend far beyond just doing a re-mix using an established person's beat. This could apply to using samples as well. The Supreme Court used the words 'comment on' that I pointed out above. One could argue that by merely having an artist mention the original work or topic contained within that it could be classified as a parody. Kiss your copyright infringement worries goodbye!! Why, I could even argue that chopping up a sample into something different is in itself a comment on the original work, as it is an expression of the artist's personal views. Furthermore, using the burlesque or humorous wording in the definitions, just making a humorous observation of the original work in one line of a song could make it a parody.

Is this a valid loophole that could be exploited and likely closed quickly if it got to the mainstream? I would think that someone would have already tried to use this argument (Dre's lawyers perhaps?). It's too easy. I realize I have MUCH more reading to do on this topic, but it seems to me that it could be legit if you spun it right. Let's all get attorney'd up in this b*tch!! It's damn near 2010, everyone should have an lawyer...my 3 year old nephew is represented by an attorney and he still craps on himself, nah mean?

I have more quotes from the parody wiki that don't mean much of anything in a legal sense, but support my inquiry in a way...my comments are italicized.

As the literary theorist Linda Hutcheon (2000: 7) puts it, "parody … is imitation, not always at the expense of the parodied text." Another critic, Simon Dentith (2000: 9), defines parody as "any cultural practice which provides a relatively polemical allusive imitation of another cultural production or practice."...

Polemic basically means 'to argue or disagree with', so by sampling a disco record or another genre and make it hip-hop, you're essentially disagreeing with the original artist's concept and point of view.

...Often, the most satisfying element of a good parody is seeing others mistake it for the genuine article...

How many kids you know think Timbaland actually plays the flute?

...Parody is by no means necessarily satirical, and may sometimes be done with respect and appreciation of the subject involved, while not being a heedless sarcastic attack....

Isn't that what sampling is about? Appreciating another person's work so much that you use it to create something new...

...Parody has also been used to facilitate dialogue between cultures or subcultures....

Hip-hop is a sub-culture isn't it? We're simply opening the lane for dialogue to commence and different points of view to be expressed.

Sociolinguist Mary Louise Pratt identifies parody as one of the "arts of the contact zone," through which marginalized or oppressed groups "selectively appropriate," or imitate and take over, aspects of more empowered cultures.

*whisper* I think she's talking about minorities and hip-hop...*whisper*

Pertaining to the song I initially referenced, I have come up with a quick description that if any of what I think is accurate, could be a legitimate legal hook-letter-offer...

I'm a Psycho is a parody of Eminem's recent single "Crack A Bottle". It uses the same instrumental as the original song, with the artist Mike Smith performing a derivative work that mimics Eminem's delivery and singing while poking fun at past songs.

Related links (that I still need to read thoroughly):
http://en.wikipedia.org/wiki/Derivative_work
http://en.wikipedia.org/wiki/United_States_Copyright_Law
http://en.wikipedia.org/wiki/Fair_use
http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.
http://en.wikipedia.org/wiki/The_Wind_Done_Gone

As is my custom, my words aren't very well thought out...thanks Yukon Jack.

Any thoughts on this? Am I full of crap as usual, or am I on to something that I would think would have been argued before, but hasn't?

 

[=Angelo=]

Interesting stuff. But im sure someone will come in to pi$$ on your bonfire...

 

[dwells]

you can't sample. straight copyright infringement

if you make a parody, you need to remake the beat.

 

[galacticboy]

you can't sample. straight copyright infringement

if you make a parody, you need to remake the beat.

Nope, fair use acts as a limitation on the exclusive rights given by copyright, so something that qualifies as a "fair use" is not infringement.

2 Live Crew used a sample from Roy Orbison in the song that landed them in front of the Supreme Court for the seminal case on fair use and parody mentioned by the OP (Campbell Music v. Acuff-Rose).

Couple observations I have on the post:

1) Sorta irrelevant (though it may make more sense later down), but Weird Al, though his songs are probably protected by fair use, licenses the original works anyway.

2) I'd read the Campbell opinion a little more closely. What the dictionary says parody is and what the Supreme Court says parody is differ slightly, and the Supreme Court's definition is more important in a legal context. For example, they draw a distinction between "parody" and "satire."

3) And the biggest problem with your idea

One of the biggest drawbacks to the fair use doctrine is that it is only available as an affirmative defense. That means, you can still get sued for copyright infringement even if you think what you're doing is considered fair use. In fact, you HAVE to get sued for copyright infringement before you can argue fair use. And even then, you run the risk of better lawyering, an unpersuaded jury, or a skeptical judge shooting down your fair use defense.

Not to mention the time and expense involved (easily thousands of dollars even if you're successful).

Because of this, few web sites, distributors, or labels will do anything with your sampled material even if you've worked up a solid fair use argument. The risk of litigation pretty much shuts out any value of the doctrine in the real world.

(Which is why Weird Al licenses everything he parodies: better safe than sorry.)

 

[jay_jizle]

^

That's the kind of response I was looking for. Thanks for reading it galacticboy. Didn't know Weird Al clears all his stuff, makes sense though.

I figured there had to be a reason for this not to work, it's too simple and easy on the surface. I just found that as I looked at the definitions and wording used, I could see a slick lawyer twisting some of those words into a solid defense. That's all our justice system is about anymore, who can twist words into what they want the best...

@ dwells' comment: isn't "re-making" the beat an interpolation and thus must follow the same guidelines as a sample? Does it simply come down to the difference between a SR and PA copyright?

@ Angelo: Thanks for reading. I was having what I thought was one of those "A-HA!!" moments when I thought of it. Oh well...