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Parody and Satire Videos, Which Is Fair Use?

CmdrTaco posted more than 4 years ago | from the i-met-my-parody-in-an-alley dept.

The Courts 286

Hugh Pickens writes "Ben Sheffner writes that both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign 'parody' videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material. The motions focus largely on one issue: whether the videos, which use the compositions 'The Boys of Summer' and 'All She Wants to do is Dance,' are 'parodies,' and thus likely fair uses, or, rather, unprivileged 'satires.' The Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), said that a parody comments on the work itself; a satire uses the work to comment on something else, so for Henley, this is a simple case: DeVore's videos do not comment on Henley's songs but use Henley's songs to mock Boxer. DeVore argues that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and asserts that the campaign chose to use Henley's songs for precisely that reason. 'DeVore's videos target Henley only in the loosest sense,' writes Sheffner, 'and his brief's arguments ... sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).' The case also bears directly on the recent removal of the 'Downfall' clips from YouTube where many journalists have almost automatically labeled the removed videos 'parodies' while the vast majority aren't, says Sheffner."

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The Penny Arcade-Strawberry Shortcake comic? (1)

kammat (114899) | more than 4 years ago | (#32002004)

Wonder if this might relate to PA using Strawberry Shortcake in a parody of the style of games American McGee would make.

Re:The Penny Arcade-Strawberry Shortcake comic? (1)

vilifier (1799004) | more than 4 years ago | (#32002584)

Not really - PA didn't reuse original artwork of Strawberry Shortcake in that example (and in fact, never reuses original artwork of other artists, to my knowledge, unless you count inviting guest artists to deliver new comics). Instead, they used the Strawberry Shortcake character, but created new original art of their own. Using characters, or even semblances of actual recognizable people, is allowed in parody, or else we'd never see fake State of the Union addresses on the opening skit of Saturday Night Live. To use a car analogy, they drew a picture of a Toyota devouring people who can't figure out how to put cars into neutral. To be more like the folks who work at Chuck DeVore's campaign, Penny Arcade would have had to cut out & scan an ad for a Ford Explorer, then paste it next to a images of Wall Street fat cats, with a subtitle referencing lax financial regulatory systems and failed economic management, then claim that they were also mocking the quality of American-made vehicles.

Re:The Penny Arcade-Strawberry Shortcake comic? (2, Funny)

The Archon V2.0 (782634) | more than 4 years ago | (#32002754)

Penny Arcade would have had to cut out & scan an ad for a Ford Explorer, then paste it next to a images of Wall Street fat cats, with a subtitle referencing lax financial regulatory systems and failed economic management, then claim that they were also mocking the quality of American-made vehicles.

You had the choice between talking about a redheaded dominatrix and a car analogy, and you went with the car analogy? I know this is Slashdot, but some things are sacred! Like redheads in leather.

Re:The Penny Arcade-Strawberry Shortcake comic? (1)

smooth wombat (796938) | more than 4 years ago | (#32002946)

You had the choice between talking about a redheaded dominatrix and a car analogy, and you went with the car analogy?

Considering the redheaded dominatrix in Tomcats [imdb.com] (ok, not truly a dominatrix), one has to be careful of what wishes for. Especially when granny is around.

Political speach (3, Interesting)

HungryHobo (1314109) | more than 4 years ago | (#32002008)

I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.

Republicans stealing music again? I'm shocked. (3, Interesting)

spun (1352) | more than 4 years ago | (#32002122)

Political speech enjoys higher levels of protection, but misuse of copyrighted works is not a free speech issue. It is a, oh what's the word, copyright issue. You do understand that, in order to work at all, copyright trumps free speech, except in limited circumstances like fair use and parody.

Republicans have a long, sordid history of using music without permissions, they especially love to use songs from artists who are not Republicans. Google 'republicans stealing music.'
This was the first page that came up: http://www.alternet.org/blogs/peek/77309/a_pattern_of_republicans_stealing_music_from_bands_who_don't_like_them/ [alternet.org]
Here's another: http://www.theinsider.com/news/1264982_Can_the_Republicans_Stop_Stealing_Everybody_s_Music [theinsider.com]
And another: http://crooksandliars.com/2008/06/14/mccain-caught-stealing-democratic-music [crooksandliars.com]

It's pretty amazing how often they do it, and get away with it despite the protests and legal actions of the artists involved. It's the Republican party saying, "We don't have to play by the rules, fuck you!" to artists who disagree with them. Classy.

Re:Republicans stealing music again? I'm shocked. (3, Insightful)

osgeek (239988) | more than 4 years ago | (#32002250)

Free speech is about being able to get your message out against the government. To say that "copyright trumps free speech" is exactly wrong. Where copyright is counter to free political speech, copyright gives way.

Good liberalism supports totally free speech: freedom of speech, freedom of expression. For supposed "liberal" artists to get upset when their works are used as free speech is hypocritical.

If there's one thing that Americans left and right should have solidarity on it's the support of the Bill of Rights. Any politician of any political flavor who doesn't support FREEDOM for the citizens of our country should be fought tooth and nail. It's amazing how many people just don't seem to get that and try to pick and choose the freedoms that they like the exact way that they like them.

Re:Republicans stealing music again? I'm shocked. (4, Insightful)

Hognoxious (631665) | more than 4 years ago | (#32002350)

Free speech is about being able to get your message out against the government. To say that "copyright trumps free speech" is exactly wrong.

They are two completely different issues.

Mock the king[1] all you want - but do it in your own words, not mine[2] - else you're just as much of a leecher as he is.

[1] of course he won't understand anyway, unless ye doeth itt iynn ye Germannical tongue.
[2] unless I say so, in which case pay up.

Re:Republicans stealing music again? I'm shocked. (1)

MartinSchou (1360093) | more than 4 years ago | (#32002708)

Mock the king[1] all you want [...]
[1] of course he won't understand anyway, unless ye doeth itt iynn ye Germannical tongue.

I doubt he'll understand it even then. Mostly because he died in 1977!

Re:Republicans stealing music again? I'm shocked. (3, Insightful)

spun (1352) | more than 4 years ago | (#32002370)

Bullshit, you can't use copyrighted material in a political ad or speech without paying for it. Period.

All the rest of your post is a similar worthless obfuscation and appeal to emotion. If you want to make outrageous contra-factual claims, back them up with, oh I don't know, the relevant passages from the Bill of Rights and the Constitution.

Re:Republicans stealing music again? I'm shocked. (3, Insightful)

HungryHobo (1314109) | more than 4 years ago | (#32002512)

It just seems odd that while you can twist a work to mocks/comment on the original work( which is politically fairly worthless) you cannot twist a work to mock/comment on what it was used to promote(which is politically fairly worthwhile).

Re:Republicans stealing music again? I'm shocked. (1)

spun (1352) | more than 4 years ago | (#32002600)

Take that up with your congrewsscritter, but good luck getting it changed, it would require a constitutional ammendment.

Re:Republicans stealing music again? I'm shocked. (1)

gtbritishskull (1435843) | more than 4 years ago | (#32002604)

Are you really saying that "All She Wants to do is Dance" and "Boys of Summer" are politically motivated works? There are a lot of songs that are politically motivated, and for those I would agree with you. But, for songs such as this, they are just stealing.

Re:Republicans stealing music again? I'm shocked. (2, Informative)

HungryHobo (1314109) | more than 4 years ago | (#32002872)

this:
http://mises.org/images4/ObamaProgress.jpg [mises.org]

Which is certainly a derivative of this:
http://cache.gawkerassets.com/assets/images/7/2008/05/340x_obama-progress-poster.jpg [gawkerassets.com]

and would not be protected because it's about the subject of the original rather than the original.

It certainly carries a very valid message.

That just strikes me as stifling since it effectively blocks the creation of satires which resonate with or which people associate with what you want to respond to.

Re:Republicans stealing music again? I'm shocked. (2, Insightful)

phantomfive (622387) | more than 4 years ago | (#32002888)

It's because no one would ever give permission to mock their own work, and using their own work is often the only way to do it. Thus it is protected. It is very rarely necessary to use a particular song to make a particular political point, you can use your own words to say the same thing.

Re:Republicans stealing music again? I'm shocked. (0, Redundant)

HungryHobo (1314109) | more than 4 years ago | (#32002964)

True but you can't get the same impact.
The best example I could find are these 2:

http://mises.org/images4/ObamaProgress.jpg [mises.org]
http://cache.gawkerassets.com/assets/images/7/2008/05/340x_obama-progress-poster.jpg [gawkerassets.com]

Could the message be conveyed as simply and as clearly and achieve the same resonance otherwise?

Re:Republicans stealing music again? I'm shocked. (3, Insightful)

Pharmboy (216950) | more than 4 years ago | (#32002408)

Where copyright is counter to free political speech, copyright gives way.

Wrong. You can still make your message without using someone else's work, so it would in no way infringe your first amendment rights. You don't lose your rights to your own work simply because someone else has a political bone to pick.

You also don't have the right to walk into my house and make a political speech. Your first amendment rights don't "trump" my property rights. You have the right to make your speech in a public place, your home, or the home of anyone who allows you permission to gain access. Whether you, me, the copyright owner, the satirist, whoever, is a Liberal, Conservative, Libertarian, Librarian or whatever, is meaningless in the context of rights.

And on the main point, it is pretty simple: Parody makes fun of the work you are borrowing from (Wierd Al), Satire is when what you are making fun of is not related to the material being used at all. Why this is an issue when they are clearly defined in law is beyond me. This is why most legal satire uses familiar music that is in the public domain (the tune from Yankee Doodle, etc.) Mark Russell [markrussell.net] is an old school political satirist who seems to have understood this.

Re:Republicans stealing music again? I'm shocked. (0)

Anonymous Coward | more than 4 years ago | (#32002420)

Where copyright is counter to free political speech, copyright gives way.

[Properly attributed citations (of reasonable length such that they constitute fair use, obviously) needed.]

Re:Republicans stealing music again? I'm shocked. (1)

spun (1352) | more than 4 years ago | (#32002680)

http://en.wikipedia.org/wiki/US_copyright_law [wikipedia.org]
or, alternatively, read the constitution, Article I, Section 8, Clause 8.

Re:Republicans stealing music again? I'm shocked. (2, Insightful)

Enderandrew (866215) | more than 4 years ago | (#32002522)

I believe in 100% unfettered free speech.

That being said, this isn't a matter of free speech. You're suggesting that I should have the right to freely redistribute Avatar if I accompanied it with political speech.

Any politician has the right to say anything that want about another politician (just in that you should have the right to say anything about me you want), but that doesn't give you the right to breach copyright.

However, there is a seperate debate here about whether or not copyright was breached. If this is satire, it could be fair use.

Re:Republicans stealing music again? I'm shocked. (1)

Lunix Nutcase (1092239) | more than 4 years ago | (#32002988)

If this is satire, it could be fair use.

No, if it is a parody, it could be fair use. As TFA and the summary state if it is ruled a "satire" then it is most likely infringing.

Re:Republicans stealing music again? I'm shocked. (1)

tbannist (230135) | more than 4 years ago | (#32002638)

I'm afraid that there is no such thing as "free political speech". There is just "free speech", or more specifically "Congress shall make no law ... abridging the freedom of speech". If you could prove, in a court of law, that copyright was in fact an abridgement of the freedom of speech, that'd be pretty nifty because then no copyrights could exist for anyone. Everyone would be able to use the excuse that someone was exercising their right to free speech when they pirated whatever material they wanted.

Of course, I'm also pretty sure this was probably the very first defense struck down by the courts when the constitutionality of copyright law was first challenged in the courts, so I wouldn't bet on winning with that argument.

Re:Republicans stealing music again? I'm shocked. (2, Insightful)

0xdeadbeef (28836) | more than 4 years ago | (#32002300)

It's always funniest when they steal "Born in the USA". The entire song is dripping with contempt for all the hypocrisy the Republicans stand for, and they're oblivious to it.

Re:Republicans stealing music again? I'm shocked. (2, Interesting)

Conchobair (1648793) | more than 4 years ago | (#32002540)

I would go with "This Land Is Your Land" by Woody Guthrie used by Reagan in the 80s. Guthrie through his life was associated with communist groups and wrote the song as a response to "God Bless America". In many ways the song was a communist anthem.

I'll alos just note that I have seen certain Repulicans denouce "Born in the USA" as anti-America. I would disagree and question what America they live in.

Re:Republicans stealing music again? I'm shocked. (0)

Anonymous Coward | more than 4 years ago | (#32002658)

I believe they live in the one called "North America". It seems to be the only one they know about. I'm not so sure that they realize Canada and Mexico are also in that same North America though.

Re:Republicans stealing music again? I'm shocked. (0)

Anonymous Coward | more than 4 years ago | (#32002860)

America never goes out without its Hat and Boots.

Re:Republicans stealing music again? I'm shocked. (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#32002394)

Free speech is a constitutional right. Copyright, however, is not. Methinks the principle legal document of our nation (US Constitution) trumps anything else.

People around here are funny. When Republicans thief music, it's illegal, evil, and should be punished to the full extent of the law. But when anyone else, Democrats included, steal music and are sued by the **AA, it's "Fair Use" and/or the fines are "exorbitant" or "overbearing." The double standards aren't even surprising anymore. It's downright pathetic.

Re:Republicans stealing music again? I'm shocked. (-1, Flamebait)

spun (1352) | more than 4 years ago | (#32002566)

Laughable ignorance on your part. Copyright [wikipedia.org] is a Constitutional right, Article I, Section 8, Clause 8.

Can I PLEASE get some better debating opponents? This is like shooting moronic right wing fish in a barrel.

Re:Republicans stealing music again? I'm shocked. (1)

HungryHobo (1314109) | more than 4 years ago | (#32002632)

No need to be a dick.
He didn't attack you.

Is there any order of precedence specified for when contradictions crop up in such documents?
Most recent amendment trumps oldest etc or something like that?
Or are all amendments considered equal with it left to the flip of a coin?

Re:Republicans stealing music again? I'm shocked. (-1, Flamebait)

spun (1352) | more than 4 years ago | (#32002958)

There are no contradictions, read the Constitution. You can say whatever you like without having to quote someone else to do it. Do you really think freedom of speech trumps copyright? That's laughably stupid. I could legally distribute Avatar by tacking on 'Republicans Suck!' at the end. Please engage your brain before making remarks that, with a moment's thought, you would realize are ludicrous.

I'm not here to fucking mollycoddle idiots with an agenda and a sack of lies. If you don't like it, fuck you in your free speech hole.

Re:Republicans stealing music again? I'm shocked. (2, Interesting)

gtbritishskull (1435843) | more than 4 years ago | (#32002668)

If you make a work and copyright it, then nobody should profit off of it without your permission. If you are running for political office and use the song, you are profiting from it and should be punished. If download it and sell CDs on the streets, then you are profiting from it and should be punished. If you download it to your iPod, then you don't profit so I don't think that a giant corporation should be suing you for $15k a song.

Re:Republicans stealing music again? I'm shocked. (2, Insightful)

Enderandrew (866215) | more than 4 years ago | (#32002508)

I attribute this to the majority of musicians, filmmakers and artists being Democrats. When a Democrat uses a song without paying for it from an artist who is a Democrat, they're not going to complain.

Re:Republicans stealing music again? I'm shocked. (-1, Troll)

spun (1352) | more than 4 years ago | (#32002590)

Democrats don't infringe copyright, plain and simple. If they ever had, the Republicans would make hay over it, but they haven't so, your attribution is false.

Re:Republicans stealing music again? I'm shocked. (1)

Enderandrew (866215) | more than 4 years ago | (#32002688)

Many of the complaints I've seen uttered aren't in political ads (where I can see a serious copyright case) but rather just coming on stage. Several artists were upset about the music Palin came on stage with, because they didn't want to be associated with her.

Democrats use music in their campaign rallys and conventions as well. I'll bet my paycheck they don't pay to license it.

This is a case where it isn't clear if copyright was violated because the music was re-recorded as satire.

Reading the links above, I'm not seeing copyright infringement. They're talking about music being played live at rallies.

Re:Republicans stealing music again? I'm shocked. (1)

Moridineas (213502) | more than 4 years ago | (#32002848)

Before I write a possibly longer post, are you really, REALLY saying that "Democrats don't infringe copyright" ?

Democrats getting a pass on theft? Yep. (3, Informative)

d3ac0n (715594) | more than 4 years ago | (#32002902)

The absence of evidence is not evidence of absence. Just because Democrats never get CAUGHT stealing music, doesn't mean they don't steal.

Actually, it's more like: Democrats get whatever they want from their good buddies at the RIAA and get a pass from lefty music artists. The charge never comes up because no lefty musician or music company EVER MAKES IT. (Ya don't eat your own, don't ya know.)

But the moment any Republican uses ANY music by any left-leaning musician, an army of lawyers and Old Media types scramble to find if they "stole" it. That just doesn't happen with Democrats.

Prime example: During the last Presidential election the McCain campaign was accused of "stealing" the song "Barracuda". The problem for the accusers was that the McCain campaign already had a contract with the company that held the rights to that song that allowed them to play it. Yet WEEKS of hay were made from a literal non-story because the original artist didn't like the McCain camp using it, despite them having met the legal requirements for use.

So forgive me if I take your "Republicans steal music" "evidence" with a MOUNTAIN of salt. History has taught me to deeply distrust leftist "news" sources.

Re:Republicans stealing music again? I'm shocked. (3, Interesting)

gtbritishskull (1435843) | more than 4 years ago | (#32002698)

Uhhh... citation needed? Do Democrats actually use more songs than Republicans without getting permission first?

Also, allowing someone to use your work for free is a way of contributing to a campaign. Are you saying this is wrong?

Re:Republicans stealing music again? I'm shocked. (2, Insightful)

Lunix Nutcase (1092239) | more than 4 years ago | (#32003010)

When a Democrat uses a song without paying for it from an artist who is a Democrat, they're not going to complain.

So then provide an actual example rather than a vague claim with no actual citation.

Re:Republicans stealing music again? I'm shocked. (4, Informative)

bkpark (1253468) | more than 4 years ago | (#32002514)

This was the first page that came up: http://www.alternet.org/blogs/peek/77309/a_pattern_of_republicans_stealing_music_from_bands_who_don't_like_them/ [alternet.org]
Here's another: http://www.theinsider.com/news/1264982_Can_the_Republicans_Stop_Stealing_Everybody_s_Music [theinsider.com]
And another: http://crooksandliars.com/2008/06/14/mccain-caught-stealing-democratic-music [crooksandliars.com]

It's pretty amazing how often they do it, and get away with it despite the protests and legal actions of the artists involved. It's the Republican party saying, "We don't have to play by the rules, fuck you!" to artists who disagree with them. Classy.

It's not quite so clear as far as accusations of "stealing" goes. There is something called compulsive licensing (for example, a radio station playing a music does not have to individually seek permission of the artist; it just has to pay a rate set by law). So, by law, anyone can play the music publicly as long as they pay the license fee set by law, no individualized permission from artists needed (and given the compulsive nature of this licensing, I doubt they can revoke this congress-granted permission; Lessig talks about this as being a case where Congress balanced the rights of copyright holders with public good).

Especially in the McCain campaign case, you will read about the artists returning the license fee—that's because McCain campaign played the music legally and paid the legally set license fee, as required by law. The artists can refuse the fee as a publicity thing if they want, but that doesn't change the fact that McCain campaign fulfilled all its obligations under the law.

Of course, why they would want to promote artists whose political views diverge so far from conservative views is baffling to me, but in any case, the only sense in which the campaign "stole music" is in the sense in which McCain campaign didn't seek permission that they didn't have to seek under the current law (but some people, like Weird Al, do seek such permission even if he doesn't have to, so you could argue it as a matter of courtesy—but not as a matter of law, as "stealing" implies).

Re:Republicans stealing music again? I'm shocked. (1, Interesting)

spun (1352) | more than 4 years ago | (#32002636)

Uh, wrong. You don't understand how copyright works. Artists maintain control over their works and can not be forced to distribute licenses. Please, though, cite a source showing how anyone can play anything they like without the artists' consent.

Weird Al is protected because his works are clearly parody, but even so he does the right thing and seeks permission. Unlike the Republicans you are trying, and failing, to defend.

Re:Republicans stealing music again? I'm shocked. (5, Informative)

bkpark (1253468) | more than 4 years ago | (#32002816)

Let me Google that for you [google.com] .

In your defense, I did misspell it. It's "compulsory licensing", not "compulsive licensing". It's a well-established legal practice (it dates from late 19th and early 20th century, when faithful reproduction of a work became easy with radios, etc.).

Read Lessig's Free Culture, if you want to inform yourself properly. He'll explain it better than I can anyway.

Oh, right. Since you can't use Google, here's the link to Free Culture [free-culture.cc] (he has a PDF there).

Re:Republicans stealing music again? I'm shocked. (3, Insightful)

Moridineas (213502) | more than 4 years ago | (#32002938)

Exactly, I think this is what Spun misunderstands. These left-wing bands complaining (eg Heart/Barracuda) when Barracuda was played at Palin rallies is no different from when Sam Moore demanded that Obama stopped using Hold On, I'm Comin. You can't control who plays your song, or who listens to your song.

If a political campaign (as in the case of this story) uses a song in a paid ad, that's a very different case. One can't just conflate these widely disparate examples and come across with a "REPUBLICANS ARE DIRTTY LYING THEIVESS ZOMG!!" conclusion (as a 10 second google finds examples on both sides of the aisle),

I personally find this area tricky and troubling ground. There's so much creativity on Youtube and elsewhere that can just be totally SQUASHED by law. As mentioned in the summary, Downfall is a great example, but in general--music videos, remixes, etc... I think it would be a sad world if we lost all of that.

Re:Political speach (1)

ensignyu (417022) | more than 4 years ago | (#32002148)

Freedom of speech doesn't protect you from getting sued for copyright infringement, especially since it's a private party (not the government) that's suing.

Re:Political speach (4, Insightful)

elnyka (803306) | more than 4 years ago | (#32002196)

I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.

You are confusing freedom of speech (politically motivated and otherwise) with fair use. Imagine for example (and just for shits and giggles) that during the last presidential elections, the Republican party decides to make a satire of Obama at the tunes of, say, one of Michael Jackson's songs (say, "Beat It".) You could alter the roles with the Democratic party making a satire of McCain/Palin (as well as changing the name of the artist and type of art being used) but the essence is the same - a satire and form of political speech using copyrighted material without parodying the copyrighted material herein used.

It would be legally reasonable that the Jackson's camp would be entitled for monetary fees due to the usage of those songs for purposes other than parodying the song and the artist. The law would recognize the artist' claim (which should not be construed as an attack to freedom of speech.)

As for the analogy with the removal of the Hitler parody videos, I'm sad to see them go, but the law is clear in that satires are not protected in the same way parodies are (wrt of using copyrighted material). None of this should be construed either as an attack to freedom of speech in the form of satire or parody.

Unfortunately, the law is (or seems to be) clear on this. I hope that someday (sooner I hope) the law gets amended so that satires done for non-commercial purposes get the same protection wrt copyrighted materials (at least so that we can all enjoy Hitler going at it for lolcatz sake).

To reiterate (1, Insightful)

elnyka (803306) | more than 4 years ago | (#32002262)

Freedom of speech does not mean a free-for-all usage of anything available to express any point of view. You are free to exercise freedom of speech using the means that are legally available (which are plenty.) Really, not being able to use a copyrighted song to make fun of a political figure does not hamper my liberty of doing so. I haven't seen the satire, but from what I can gather, DeVore is/was in the wrong here unless the artistic work was altered so as to make clear it is a derived art clearly distinguishable from the original (with the derived art being legally usable for such a purpose.)

Re:Political speach (1)

Altus (1034) | more than 4 years ago | (#32002434)

I would put forth non-comercial and non-political (is there a difference really?) uses. I think it is totally inappropriate to use and artists work to support a cause that the artist is opposed to. If the artist is in favor certainly permission would be given, but it seems like it should be well within the rights of an artist to decide who gets to use their work to further a political career.

Re:Political speach (0)

Anonymous Coward | more than 4 years ago | (#32002808)

But even non-commercial use can be a problem for the original artist. Say a song is used for a parody/satire, it takes off, gets a bajillion hits on youtube, and people equate the song with the satire/parody.

What happens when a song people used to want to pay an artist to play live is no longer interesting in it's original context?

Hanging out with other musicians over the years, we've done plenty of parody's, just between ourselves. If I was going to put something out there beyond my circle of friends, I write something new. Or use something incredibly old.

Re:Political speach (1)

snowgirl (978879) | more than 4 years ago | (#32003048)

As for the analogy with the removal of the Hitler parody videos, I'm sad to see them go, but the law is clear in that satires are not protected in the same way parodies are (wrt of using copyrighted material). None of this should be construed either as an attack to freedom of speech in the form of satire or parody.

Unfortunately, the law is (or seems to be) clear on this. I hope that someday (sooner I hope) the law gets amended so that satires done for non-commercial purposes get the same protection wrt copyrighted materials (at least so that we can all enjoy Hitler going at it for lolcatz sake).

I like the idea of making a Downfall Hitler rant talking about how all his other rants have been disappeared. He would be all pissed about it, and ranting against copyright law protecting parodies, but not satire.

The funny thing is that it then becomes a parody, and thus actually fair use.

Re:Political speach (2, Insightful)

gyrogeerloose (849181) | more than 4 years ago | (#32002220)

I was under the impression that for the most part political speech enjoyed a far higher level of protection than most and this seems to fall very clearly into that category.

I don't think there's any legal precedent concerning freedom of political speech versus possible copyright violation, which is what makes this case interesting and important to watch.

As far as the Downfall bunker scene meme goes, the author is right--almost none of those videos are actual parodies of the movie. They're satire of an entirely different subject, which is not protected as fair use and makes them vulnerable to a takedown notice. I still think the producers are being short-sighted by doing it, however, because it's been priceless advertising for what was otherwise an obscure German-language film. I'd never heard of it until I started seeing the clips on YouTube but I ended up renting it.

Disclaimer: IANAL, just an interested layman.

Re:Political speach (0)

Anonymous Coward | more than 4 years ago | (#32002338)

hey, I'm into the anal scene. Want to hook up sometime?

Re:Political speach (0)

Anonymous Coward | more than 4 years ago | (#32002454)

He's straight, but I'll hook up with you anytime, honeybunch. I'm driving, though. You ignorant asshat.

Re:Political speach (0)

Anonymous Coward | more than 4 years ago | (#32002232)

Were you? How nice. Well your impression was wrong, shitcock.

..political uses of third-party material.. (2, Insightful)

countertrolling (1585477) | more than 4 years ago | (#32002036)

Hmm. To a dark place this line of thought will carry us. Great care we must take.

endorsed (1)

warGod3 (198094) | more than 4 years ago | (#32002072)

I wonder if the RIAA supports Mr. Devore... probably not. Oh well, it happens.

I thought it was pretty simple (5, Insightful)

Anonymous Coward | more than 4 years ago | (#32002094)

Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.

Re:I thought it was pretty simple (4, Insightful)

Jahava (946858) | more than 4 years ago | (#32002214)

Parody but don't *use* the original work. When Weird Al makes a song parody (ignore for the moment that he gets permission and probably shares in royalties) he and his team don't just take the original music and sing over it. It's RE-RECORDED. That's the key. You can get away with the similarities and same song composition but you have to at least lift a finger and do the work yourself. You wanna be lazy, then the consequences are paying someone else, either for use of the work or as damages in a lawsuit later.

Weird Al actually parodies the song itself, so he could talk over it karaoke-style if he wanted to. He's probably re-recording it because it gives his parody a more professional polish and gives him some musical creative freedom. He really doesn't have to do that in order to be parodying the song. I also heard in an interview with him on NPR that, even then, he still seeks permission from every artist he parodies just to avoid any potential legal conflicts (citation needed).

As I understand it, however, even if you re-record someone's music, it's still subject to copyright. The first case that comes to mind is the Coldplay vs. Joe Satriani [mtv.com] lawsuit, where Joe alleged that Coldplay stole some of the melody from one of his songs. In this case, even though Coldplay clearly physically played the music, it was still potentially subject to copyright.

Re:I thought it was pretty simple (3, Informative)

dan_sdot (721837) | more than 4 years ago | (#32002396)

I remember that Satriani v. Cold Play lawsuit. I'm not lover of Cold Play, but it seemed like a bit of a stretch on Satriani's part.

The problem here is that Copyright Law if just poorly thought out, ambiguous, and lacking common sense.

When is one piece of music copying another? When are two pieces of music "different enough" to be considered different pieces of intellectual property? These are actually much more complicated questions than you might think (and this is just talking about music copyright).

All music crosses lines with other music to a certain extent. Check out these two youtube videos for a quick and witty illustration by a couple musicians: http://www.youtube.com/watch?v=5pidokakU4I [youtube.com]
and
http://www.youtube.com/watch?v=JdxkVQy7QLM [youtube.com]

PS: Also, it's funny how everyone on Slashdot is all of a sudden on the side of the copyright enforcer.

Re:I thought it was pretty simple (1)

amRadioHed (463061) | more than 4 years ago | (#32002588)

PS: Also, it's funny how everyone on Slashdot is all of a sudden on the side of the copyright enforcer.

I think there's a fairly clear distinction between music used for personal use and music used for political or commercial gain.

Re:I thought it was pretty simple (1)

bkpark (1253468) | more than 4 years ago | (#32002418)

As I understand it, however, even if you re-record someone's music, it's still subject to copyright.

Two different copyrights. Copyright on the performance (akin to copyright on movies or recordings of a play performance) vs. copyright on the music score (akin to copyright on movie scripts or plays themselves). I think there are some differences in how the two are treated in terms of length and compulsive licensing, but it's the copyright on the music score that gets you if you, e.g. publicly perform copyrighted music like "Happy Birthday".

Re:I thought it was pretty simple (1)

Altus (1034) | more than 4 years ago | (#32002462)

keep in mind, even though he would be protected, Weird Al doesnt want a lawsuit. Recordings are generally owned by record companies and no by the artists themselves. It is likely far easier to get the Artists permission than the recording company.

Re:I thought it was pretty simple (1)

ProppaT (557551) | more than 4 years ago | (#32002534)

By this definition of parody, " a parody comments on the work itself," how many of "Weird" Al's songs would you actually consider a parody. I don't see many of them commenting directly on the song. In fact, they seem a lot more like the definition of satire (according to this article), "a satire uses the work to comment on something else." He used MacArthur Park to comment on Jurassic Park, I Was In Jeopardy to comment on Jeopardy, etc. In other words, by this definition I can use a Lady Gaga song to make a point that Lady Gaga is stupid; however, I could not use a Lady Gaga song to comment on "Bad Romances" in general.

Re:I thought it was pretty simple (0)

Anonymous Coward | more than 4 years ago | (#32002974)

By this definition of parody, " a parody comments on the work itself," how many of "Weird" Al's songs would you actually consider a parody.

Some of the most obvious include "(This Song's Just) Six Words Long", "Smells Like Nirvana", and "Achy Breaky Song".
But pretty much all of his parodies poke fun at the style of the original songs, even if the lyrics don't refer to it.

Re:I thought it was pretty simple (1)

SteveFoerster (136027) | more than 4 years ago | (#32002554)

I also heard in an interview with him on NPR that, even then, he still seeks permission from every artist he parodies just to avoid any potential legal conflicts (citation needed).
No citation here either, but I think I remember reading that he asks permission not for legal reasons, but simply because he believes it's polite.

Re:I thought it was pretty simple (0)

Anonymous Coward | more than 4 years ago | (#32002966)

Might be that he learned from being sued over Marty Feldman Eyes.

Re:I thought it was pretty simple (1)

Enuratique (993250) | more than 4 years ago | (#32002218)

Solution? Hire Bruno Ganz and a ragtag group of aspiring actors and reshoot the scene... Then use this new version as the basis for Downfall parodies?

Re:I thought it was pretty simple (1)

gyrogeerloose (849181) | more than 4 years ago | (#32002594)

Solution? Hire Bruno Ganz and a ragtag group of aspiring actors and reshoot the scene... Then use this new version as the basis for Downfall parodies?

You'd have to use a different script as well, of course, since the screenplay itself is copyrighted. But since most of us outside Germany have no idea of what Ganz is actually saying during that scene anyway, pretty much anything similar would do.

Wrong (1)

pavon (30274) | more than 4 years ago | (#32002244)

In music the composition, the lyrics and the recording are all covered by copyright. You are required to pay royalties for covers and adaptations regardless of whether you use the actual recording.

Re:Wrong (0)

Anonymous Coward | more than 4 years ago | (#32002864)

I think the royalties are lower for the composition and lyrics though. Supposedly licensing a song played by a cover band is a lot cheaper than licensing a recording by the original artist.

Re:I thought it was pretty simple (1)

Locke2005 (849178) | more than 4 years ago | (#32002386)

That's the key. That is not the key at all. If you record music someone else has copyrighted, you owe the copyright holder performance royalties. Generally, you cannot get away with "similarities" that exceed 7 consecutive notes. Also, Weird Al doesn't rely on Fair Use law at all -- he always asks the copyright holder for permission first.

Weird Al (0)

Anonymous Coward | more than 4 years ago | (#32002104)

When I think of parody the first thing that comes to mind is Weird Al, and I can't really recall any of his songs commenting on the original work itself.

The definition of parody that I find is "A work or performance that imitates another work or performance with ridicule or irony." [Wiktionary.org]

Is the 'legal' definition different?

The political video is both a parody and a satire, but parody is enough to encompass the work entirely.

Re:Weird Al (1)

An ominous Cow art (320322) | more than 4 years ago | (#32002170)

When I think of parody the first thing that comes to mind is Weird Al, and I can't really recall any of his songs commenting on the original work itself.

"Smells Like Nirvana" and "This Song's Just Six Words Long" are like that, I think. Maybe others.

Re:Weird Al (2, Informative)

Jer (18391) | more than 4 years ago | (#32002178)

When I think of parody the first thing that comes to mind is Weird Al, and I can't really recall any of his songs commenting on the original work itself.

Many of his songs actually do - "This Song Is Just Six Words Long" and "Smells Like Nirvana" both come to mind right off the top of my head.

But that doesn't matter from a legal perspective because Yankovic and his label don't rely on legal definitions of Fair Use for his work. He actually goes out and gets permission from the rights holders before making a parody of their work. So you can't use what he does as an example of what you can do with Fair Use protections for parody works.

Re:Weird Al (0)

Anonymous Coward | more than 4 years ago | (#32002982)

Weird Al parodies the song by re-working the words and re-creating the music. His songs are inststantly recognisable as being copies of some other, better-known work. He also typically secures permission before releasing the parody, and in most cases pays royalties for each performance to the "parodied" artist.

I understand Coolio wasn't too happy with "Amish Paradise", but he had no real recourse. I understand Coolio has had no problems cashing the royalty checks from "Amish Paradise" since it's release...

On the other hand, Madonna was "very enthusiastic" about his parody of "Like a Virgin", going so far as to encourage him to do so...

Amish Paradise Wikipedia Link [wikipedia.org]

Like a Surgeon Wikipedia Link [wikipedia.org]

Typical (-1)

Anonymous Coward | more than 4 years ago | (#32002154)

Liberals can't compete on levels of intellect, or rational thought so instead they abuse the legal system.

Re:Typical (0)

Anonymous Coward | more than 4 years ago | (#32002552)

That is so true! No conservative would ever stoop so low as to be a lawyer or - God forbid - a Supreme Court justice.

uh oh (-1, Troll)

Anonymous Coward | more than 4 years ago | (#32002190)

Republicans might actually have to come up with something actually ORIGINAL!

Proposed Test for Infringement (2, Interesting)

srussia (884021) | more than 4 years ago | (#32002264)

Does the "derivative work" function as a substitute for the original work? If it serves a different function, it should be considered fair use.

Re:Proposed Test for Infringement (1)

Locke2005 (849178) | more than 4 years ago | (#32002422)

Great! So now my movie entitled Star Wars: The Musical can proceed as planned; it serves a different function, so it obviously should be considered fair use!

Re:Proposed Test for Infringement (1)

srussia (884021) | more than 4 years ago | (#32003004)

Great! So now my movie entitled Star Wars: The Musical can proceed as planned; it serves a different function, so it obviously should be considered fair use!

Absolutely! Imagine two theaters side-by-side, one showing Star Wars, the movie, and the other showing "Star Wars:The Musical". Do you really think both would attract the same demographic?

Re:Proposed Test for Infringement (1)

Theaetetus (590071) | more than 4 years ago | (#32002450)

Does the "derivative work" function as a substitute for the original work? If it serves a different function, it should be considered fair use.

"Well, the original was a song, meant to entertain and sell records. My rip-off is meant to get people to purchase my t-shirts and coffee mugs, so it's a different function. Fair use!"

Forgotten meaning (0)

aBaldrich (1692238) | more than 4 years ago | (#32002280)

It's better if the Supreme Court gives a new meaning to "satire" and "parody", because now nobody agrees on their definition. I don't know the exact origin of the word "parody" because I don't know greek, but as far as I know the satura was the only truly roman genre of literature (i.e. theatre was a greek invention, borrowed by the romans). It is really hard to define. The adjective "satur" means "full", while the adverb "satis" means "enough" (-->satisfy). Its contents varied, they where something like very short essays or comments. Lucilius wrote a lot, on every conceivable subject. Also, it was written in verse.
So now everyone talks about a "satire" and does not know what it was supposed to mean. I bet these people have never heard of Oratius.

I can understand why Henley is pissed (5, Interesting)

Locke2005 (849178) | more than 4 years ago | (#32002290)

Use of Don Henley's well-known music implies that he supports the DeVore, which he clearly does not. In that sense, it is defamatory to Don Henley. Also, there argument that "It is parody because Henley is a liberal" is absurd, they seem to be arguing that it would be unlawful to rip off a well known conservative's music, but it is perfectly ok to rip off a well-known liberal?!? This is the same race that saw Carly Fiorina's "Demonic Sheep" ads? I think it will go down in history as the pinnacle of Repugnantcan douchebaggery, an affront to intellectual conservatives everywhere.

Re:I can understand why Henley is pissed (1)

dan_sdot (721837) | more than 4 years ago | (#32002610)

Use of Don Henley's well-known music implies that he supports the DeVore, which he clearly does not. In that sense, it is defamatory to Don Henley

What? How on earth does using this tune imply that Henley has anything to do with it? It is clearly meant to be silly. I had difficulty understanding what the heck you were talking about...

Then I saw you start to drift to talk about ripping off conservative's music (what?) and then onto demon sheep political advertisments (how is that relevant?) and then onto "Repugnantcan" (did I spell that right?) douchebaggery. That's when I realized that your rant is basically like grampa simpson yelling at a cloud [bolgernow.com] . Why is this troll modded up?

Re:I can understand why Henley is pissed (0)

Anonymous Coward | more than 4 years ago | (#32002834)

Using someone's music implies you got permission. Getting permission implies that the owner of said music agrees with what you're using it for.

Re:I can understand why Henley is pissed (0, Offtopic)

blair1q (305137) | more than 4 years ago | (#32002892)

Saxby Chambliss's ads painting Max Cleland as a supporter of Osama bin Laden and Saddam Hussein were the utter depths of Repug douchebaggery.

It doesn't get much more disgusting than saying a man who lost both legs and an arm in Viet Nam is a traitor.

Separation of Business and State (1)

slick7 (1703596) | more than 4 years ago | (#32002326)

Parody and fair use is all well and good as long as it's for entertainment.
Use for political rhetoric is another thing all together.
Just as I believe that entertainers and singers have no business spouting partisan views. My belief is that these entertainers are singing songs or reading scripts. If entertainers wish to speak out using their celebrity, it should be impartial, like poverty, diabetes, hunger, clean environment, stop killing whales.
As to political views, they should be expressed like everyone else, at the ballot box.
Leave the political rhetoric to the politicians, it's all crap anyway, their voting records are the only truth worth monitoring.

Re:Separation of Business and State (1)

amRadioHed (463061) | more than 4 years ago | (#32002760)

Wow, really? So you think the only people entitled to free speech are those who aren't in the position to be heard?

If entertainers wish to speak out using their celebrity, it should be impartial, like poverty, diabetes, hunger, clean environment, stop killing whales.

Hah! Yeah, nothing political about those topics :-/

Re:Separation of Business and State (1)

gtbritishskull (1435843) | more than 4 years ago | (#32002980)

Every American has the right and (some say) responsibility to speak out and express their political views. Entertainers are just as much American citizens as anyone else. Not only do I say it is OK, I think it is the great thing about this country. Also, the songs they sing are their property. They should have control over who does or does not use it.

Needs improvement (0, Offtopic)

B.Stolk (132572) | more than 4 years ago | (#32002328)

If you watch the video, you will see that it does not walk like a human.
During every moment in his stride, his stance is stable.

The hard part of bipedal robots is make it walk like a human does: the stance of a human halfway through each step is an instable pose.

Re:Needs improvement (1)

MozeeToby (1163751) | more than 4 years ago | (#32002474)

First, I think you have the wrong thread.

Second, it took until the 3rd line of your post for me to realize that, for a while I thought you were making some clever, insightful comment about our inhuman political overlords.

Legal "satire" vs. literary "satire"? (1)

epte (949662) | more than 4 years ago | (#32002438)

This is the first I've heard of satire being illegal in any sense of the word. Please forgive my ignorance. What's the difference between this and, say, Vonnegut, Twain, or Swift? Many of the classics are satires. Is it that the people or institutions under attack are still alive, or personally identified? But didn't literary satires do this?

Re:Legal "satire" vs. literary "satire"? (4, Insightful)

Attila Dimedici (1036002) | more than 4 years ago | (#32002548)

Satire is perfectly legal. What the summary is saying is that you cannot repackage someone else's copyrighted works in a satire against a third party.
Of course both songs were written and recorded over 20 years ago, they should both be in the public domain by now if copyright had a reasonable duration (Ok I would consider it reasonable if their copyright expired in 2012).
Personally, I think this case is a perfect example of why copyright should be shorter. These songs sum up the message that DeVore wants to convey about Barbara Boxer and our culture would be much richer if such songs could be used for the purpose intended here.

Re:Legal "satire" vs. literary "satire"? (2, Insightful)

ShinmaWa (449201) | more than 4 years ago | (#32002662)

No one said that satire is illegal. What was said is that using someone else's copyrighted material without permission as part of the satire is not protected by fair use. Big, BIG difference.

- Using clips of a movie to make fun of that movie = parody = fair use
- Using clips of a movie to make fun of something else entirely = satire = not fair use

You can agree or disagree with the above, but that's where the courts currently stand on the issue.

(As an aside, Twain, et al, didn't use other people's copyrighted works in their satires)

The whole question is based on a false assumption. (1)

Hurricane78 (562437) | more than 4 years ago | (#32002460)

There is no point in concepts like “fair use”, since the base concept that you couldn’t use known information is absurd and physically impossible in the first place. If you know it, you can always and without exception use it. If you don’t you can’t prove it even exists (without revealing it).

It seems that: In western culture the parody is the LAW. ;))

Don Henley = LIBTARD (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#32002502)

Of course he has a problem with it since the suit is against a Republican and because Henley is the epitome of the Cali Leftist, he runs to the courts.

He should go back to taking advantage of underage girls because he made some great music under them...or were they under him????

No problem (1)

elrous0 (869638) | more than 4 years ago | (#32002596)

Just tack on a parody of Henley on at the end. Considering his legendary ego and penchant for self-serving aggrandizing, it should be like shooting an overrated fish in a barrel of more talented fish.

I flipped on this one to support the musician (2, Insightful)

spitzak (4019) | more than 4 years ago | (#32002626)

After reading a bit more about this I suprised myself by changing my mind. My first knee-jerk reaction was that the videos were ok because they were parodys/satire.

But basically if this was allowed, you could use any music for any video you make whatsoever, and claim it is a satire/parody. Maybe you are required to insert at least one insult, about a random subject, into the video, so it is a "satire or parody". This would completely defeat copyright and certainly is not a good idea.

However that if Boxer had officially used one of these songs in their own videos (after paying for the rights, as required), somebody parodying the Boxer ad can use a parody version of that same song. I believe this was done by conservatives on some Obama attacks. More to the point here, a joke video about Windows using a Rolling Stones "start it up" parody would be allowed, since that was part of the Windows advertisement, but use of a different Rolling Stones song that Microsoft did not use is not allowed.

Dangerous Precendent (2, Insightful)

webbiedave (1631473) | more than 4 years ago | (#32002952)

From the article: "DeVore argues that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and asserts that the campaign chose to use Henley's songs for precisely that reason."

That's quite a dangerous stretch counselor. If that were so, it would follow that usage of copyrighted works would depend on how much the holder's political leanings coincide with the person being mocked.
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