Copyright And The First Amendment: Lack Of Satire Coverage Leads To Stifling Of Speech
from the what's-wrong-with-satire dept
As has been discussed many times in the past, the courts have dealt with the inherent conflict between copyright law and the First Amendment by saying that the two “safety valves” of “fair use” and “the idea/expression dichotomy” helped make sure that speech was not really stifled under copyright law. Of course, there are tons of examples where these “valves” don’t work — and one clear one is the bizarre and still not clearly explained distinction between “parody” and “satire.” Parody is considered a valid fair use defense, while satire is not. The distinction is mostly about whether or not the work in question is “commenting on” the work that it is using (parody) or using the work to comment on something else (satire).
Copyright litigator Ray Dowd recently discussed this issue in questioning the famous Ninth Circuit decision back in 1997 that more or less set the ground rules here, Dr. Seuss vs. Penguin Books about whether or not a book called The Cat Not In the Hat was protected fair use. The court ruled that it was not, because the work was satire — and since it used the Dr. Seuss characters not to comment on Dr. Seuss or “the cat in the hat,” but to comment on the OJ Simpson trial, that it was not protected under fair use. As Dowd notes, this would seem likely to stifle political speech:
So if I want to draw former President George W. Bush as Mickey Mouse and parody him by placing him in a Mickey/Minnie scenario, by this logic Disney can stop me from engaging in this core political speech because I am not making fun of Mickey, only of the former President.
How to permit political speech, promote creativity and maximize economic welfare for both copyright creators and society in general are questions implicated in these debates, with the cultural pendulum slowly swinging towards the Remix culture camp. There are a few signs that legal culture is moving in that direction, with judges taking a more expansive view of fair use.
Along those lines, the EFF is now expressing concern over the recent ruling in favor of Don Henley against a California Senatorial candidate, Chuck DeVore. In his advertising, DeVore used a couple reworkings of Henley songs (“The Hope of November” and “All She Wants to Do Is Tax,” which were versions of Henley’s “The Boys of Summer” and “All She Wants to Do Is Dance”). The court, as in the Dr. Seuss case, noted that since DeVore’s use was not parodying Henley, there was no fair use. As the EFF points out, this makes little sense, and leads to some questionable outcomes:
The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?
The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use. “Parody,” in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman,” the Supreme Court found that the use was permitted. A “satire,” in contrast, involves using a work to comment on something other than the work itself.
So at what point do the courts (or Congress) realize that not only is this distinction pointless, but also that this is a clear situation where these so-called “safety valves” to protect the First Amendment are not working. Political speech is being denied due to a law from Congress (who, we are told, “shall make no [such] law”).
Filed Under: copyright, free speech, parody, satire
Comments on “Copyright And The First Amendment: Lack Of Satire Coverage Leads To Stifling Of Speech”
judges as critics
The fine line between parody (commentary upon the appropriated work) and the use of the work to comment on others is an insane one. The recent J.D. Salinger case against publication of the Catcher in the Rye “sequel” is another example. Experts for the defendant who are major literary critics submitted testimony explaining all the ways the new work commented on the earlier one, but the judge decided that it wasn’t a commentary, but, rather, merely an appropriation. The crazy thing is that there’s not going to be any negative impact on the original work except to the extent the audience likes it better than any sequel Salinger may have written — and why in the world would copyright law stifle better work? Copyright law need not stifle worse work — the market will take care of that. So what’s the loss to the creator of the original, appropriated work?
Satire
It’s a sad comment on the quality of intellect today when people have to use others’ work to “create satire”.
Swift is spinning in his grave.
I agree with the courts on this one. You want to use my work to make fun of me, I’ll laugh with you.
You use my work to make fun of someone else? Not a chance. Write your own cleverness. Swift did.
Re: Satire
“Can I use your work to make fun of you and someone else, or should that be illegal as well?” – Jonothan Swift
Re: The end of satire courtesy of Balderstone
So what your saying is that unless it is in public domain then using characters, music, images, video, etc for satire should not be allowed?
I know satire based upon things that are no longer relevant would make so much sense!
If you don’t like satire fine, but it is art form just the same. If someone makes a collage of images are they suddenly unintelligent or unworthy because they didn’t take the pictures themselves?
I think you are failing to grasp the obvious here.
Re: Satire
You’re completely ignoring (or blindly unaware) of how the creative process actually works. As a blues fan I know that the Elmore James classic “Dust My Broom” is based on a version of the song by Robert Johnson, who was taught it by Son House, who in turn heard it from an unknown artist he saw playing in a jook joint in the 20’s, and that character is mostly likely to have picked up a progenitor of that song in a rag time dance hall, and so on. Its actually difficult to find completely original material in modern blues set these days. And the Blues would be in a very sorry state if your style of copy right.
Re: Satire
Honored @Balderstone: If you write a 100-word essay, then I will honor your wish not to use it to make fun of someone else.
How about if I use 50 words? No? 25? No? 10?
At what point is the quality of intellect strained, today? Tomorrow? Make your sad comment, in more specific terms.
It would certainly help if Mr. Opsahl at EFF made mention of the fact that the Supreme Court, in its Campbell v. Acuff Rose decision, took a position diametrically opposed to the position he espouses, and if he then attempted in some manner to reconcile his position with that decision.
Sadly, he makes no such attempt. Thus, all he really does is add confusion to the parody/satire distinction by trying to wrap the Henly case in the neat, little bow of “this is ‘political speech’ for goodness sake”.
For the benefit of those who may never have heard of Campbell v. Acuff Rose, it was a unanimous decision by the Supreme Court wherein the parody/satire distinction was dissected and the reasons underlying the distinction were elaborated upon in great detail.
Re: Re:
“It would certainly help if Mr. Opsahl at EFF made mention of the fact that the Supreme Court, in its Campbell v. Acuff Rose decision, took a position diametrically opposed to the position he espouses, and if he then attempted in some manner to reconcile his position with that decision.”
Mr. Opsahl references Campbell v. Acuff Rose as an example following: ‘The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use’. Did you not read the paragraph properly, or did you fail to reference anything specific because you knew your point was bogus?
Re: Re: Re:
Since I am the one who happened to mention the Campbell case, one never mentioned by name in the article, I believe you give Mr. Opsahl far too much credit. If some courts are “misguided”, it seems appropriate to at the very least give one or more examples, and to then very briefly try and explain why you believe this is so.
Re: Re: Re: Re:
“Since I am the one who happened to mention the Campbell case, one never mentioned by name in the article, I believe you give Mr. Opsahl far too much credit.”
Never mentioned by name? Let me introduce you to the concept of hyperlinks: See the words underlined and often in a different colour? Click on one to navigate to a related page. Try this one for example, which was used in Mr. Opsahl’s article.
“If some courts are “misguided”, it seems appropriate to at the very least give one or more examples, and to then very briefly try and explain why you believe this is so.”
Pot, kettle; black. On the other hand, I found Mr. Opsahl’s reference entirely clear; yet I am still struggling to see past the obvious conclusion that you disagree with him and are merely trying to pin an oversight or inconsistency where there is none.
Re: Re: Re:2 Re:
Thank you for noting the existence of a link, though its presentation in a cordial manner would have been appreciated.
Unlike you, I do not find his reference entirely clear as in my view it does not necessarily follow from Campbell that the use of a “work” in the context of a political campaign ad is entitled to greater deference than in other contexts. To this extent he and I disagree.
Re: Re: Re:3 Re:
TAM writes: Thank you for noting the existence of a link, though its presentation in a cordial manner would have been appreciated.
Likewise, I’m sure. Classic on-line trolling here. Demand that the other side in an argument present every point in the most demure, unemotional and mannerly fashion possible, while reserving the right to resort to graphic, exceedingly emotional language yourself.
This tactic works better when done by several sock puppets, or in this case, as an anonymous poster.
Stick to the point, dude. You’ll be received better yourself.
Re: Re: Re:4 Re:
That’s low, this AC is far too well-reasoned to be TAM. Note that he is actually discussing the issue, rather than attacking the people. Definitely someone else.
Re: Re: Re:3 Re:
Ummm – so, you did not read the linked article then
Re: Re: Re: Re:
Since I am the one who happened to mention the Campbell case
Since you can’t read, I’ll quote the entire paragraph where Opsahl mentions the Cambell case, and uses it as an example of the satire/parody distinction:
The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use. “Parody,” in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman,” the Supreme Court found that the use was permitted. A “satire,” in contrast, involves using a work to comment on something other than the work itself.
The rest of the article was, in fact, an attempt to “reconcile his position with that decision” – including using other decisions (e.g. Blanch vs. Koons) as examples. That last case has some pretty good references, such as the following:
As Judge Leval observed in his seminal law review article on the subject, the law of copyright “is intended to motivate the creative activity of authors and inventors by the provision of a special reward …. The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1108 (1990) (quoting Harper & Row, 471 U.S. at 545-46, 105 S.Ct. 2218) (ellipsis in original; internal quotation marks and footnote omitted). At the same time, though, “excessively broad protection would stifle, rather than advance, the [law’s] objective.” Id. at 1109. “Monopoly protection of intellectual property that impeded referential analysis … would strangle the creative process.” Id. at 1108. Fair use should therefore be perceived as an “integral part of copyright, whose observance is necessary to achieve the objectives of that law.” Id. at 1107.
(…) “The ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts,’ U.S. Const., art. I, § 8, cl. 8, ‘would be better served by allowing the use than by preventing it.'” Castle Rock Entm’t, 150 F.3d at 141 (quoting Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1077 (2d Cir.1992) (alteration incorporated)); see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir.2006) (similar).
In general, if fair use does nothing to hinder the creation of new works (“progress”), then it should be allowed as free speech.
Now, if DeVore had claimed that Henley was endorsing him, then Henley might be able to sue for libel. Honestly, I think this is why Henley sued in the first place. It’s just easier nowadays to get a judgement against someone for infringement, than it is for libel.Since I am the one who happened to mention the Campbell case
Since you can’t read, I’ll quote the entire paragraph where Opsahl mentions the Cambell case, and uses it as an example of the satire/parody distinction:
The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use. “Parody,” in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman,” the Supreme Court found that the use was permitted. A “satire,” in contrast, involves using a work to comment on something other than the work itself.
The rest of the article was, in fact, an attempt to “reconcile his position with that decision” – including using other decisions (e.g. Blanch vs. Koons) as examples. That last case has some pretty good references, such as the following:
As Judge Leval observed in his seminal law review article on the subject, the law of copyright “is intended to motivate the creative activity of authors and inventors by the provision of a special reward …. The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1108 (1990) (quoting Harper & Row, 471 U.S. at 545-46, 105 S.Ct. 2218) (ellipsis in original; internal quotation marks and footnote omitted). At the same time, though, “excessively broad protection would stifle, rather than advance, the [law’s] objective.” Id. at 1109. “Monopoly protection of intellectual property that impeded referential analysis … would strangle the creative process.” Id. at 1108. Fair use should therefore be perceived as an “integral part of copyright, whose observance is necessary to achieve the objectives of that law.” Id. at 1107.
(…) “The ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts,’ U.S. Const., art. I, § 8, cl. 8, ‘would be better served by allowing the use than by preventing it.'” Castle Rock Entm’t, 150 F.3d at 141 (quoting Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1077 (2d Cir.1992) (alteration incorporated)); see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir.2006) (similar).
In general, if fair use does nothing to hinder the creation of new works (“progress”), then it should be allowed as free speech.
Now, if DeVore had claimed that Henley was endorsing him, then Henley might be able to sue for libel. Honestly, I think this is why Henley sued in the first place. It’s just easier nowadays to get a judgement against someone for infringement, than it is for libel.
Re: Re: Re:2 Re:
Um, I wrote this out in a text editor, and I hit “paste” twice, obviously. Sorry about that.
I don't understand.
What is so special about parody that makes it more valuable an expression than satire? I understand that they’re two distinct uses of a work, but I don’t understand what is so special about parody that makes it worth protecting where satire is not.
Re: I don't understand.
I’m not a jurist, but my guess is that the use of a specific work is central to parody while it is not to satire. I can make fun of you without using Mickey Mouse. I however can’t really make fun of Mickey Mouse without making use of Mickey Mouse.
Re: My guess about the difference:
If I use an image of Mickey Mouse to pick on George Bush, someone may take it that I am implying that Disney (by virtue of the fact that Mickey Mouse “is” Disney) endorses the picking-on of George Bush.
Re: Re: My guess about the difference:
That someone would be an idiot, as using ‘Mickey Mouse’ has always been a term of contempt. i.e. ‘Mickey Mouse Court’
god damn, it must be friday. mike, please. did you even think when you wrote this one? parody is parody of something. you cannot use characters from a to make fun of b. that isnt fair use, not even close. if this stifles anything, it appears only to stifle idiots who are too stupid to come up with real parody or real satire.
if this is what you are trying to protect, please stop now, it is a waste.
Re: Re:
I get it now! You’re doing parody! It all makes sense.
Re: Re:
“you cannot use characters from a to make fun of b. that isnt fair use, not even close”
You’re not a lawyer, so your opinion on this is worthless.
Re: Re: Re:
‘”you cannot use characters from a to make fun of b. that isnt fair use, not even close”
You’re not a lawyer, so your opinion on this is worthless.’
That isn’t why their opinion is worthless..
Re: Re: Re:
“you cannot use characters from a to make fun of b. that isnt fair use, not even close”
You’re not a lawyer, so your opinion on this is worthless.”
Thats right, according to his OWN standard for commenting on legal issues (be a lawyer, or have consulted one before speaking), he has no valid opinion on the matter, his view doesnt matter.
A Better Question
I’m not sure I agree that the distinction represents bad law in all cases, but we need to ask a further question when asking if satire is outside the scope of fair use. I agree we need to protect the copyright holder’s interests, but how does the satire affect either the value or the sales of the copyrighted material? While I suspect the affect in both the Mickey Mouse/George Bush and Don Henley scenarios is nothing, in cases involving less well-known copyrights, the affect might actually be positive. It’s essentially free advertising, and less well-known copyrights should welcome that. Either way, I’d say that fair use seems an appropriate defense.
Now, if satire were handled in a way that the court deemed to form a bad association for the copyrighted material, then perhaps that satire should not be fair use; however, I’d rather the court perform that analysis than simply say that satire is per se outside the scope of fair use. Remember, we grant a copyright not as a reward to the creator for a job well done, but rather as a mechanism to assure a richer culture to the benefit of the public at large. In other words, the copyright monopoly is a means to achieve a goal, and if that goal isn’t being met, we should change the nature of the monopoly.
Re: A Better Question
“in cases involving less well-known copyrights, the affect might actually be positive. It’s essentially free advertising, and less well-known copyrights should welcome that.” – that should be a choice of the copyright holder. what mike is talking about here is using one set of copyrighted characters (or material) to parody someone or something else. that goes well beyond fair use, because the copyright holder is not the target of the parody. in simple terms, it isnt a parody, just comedy, poorly done.
Re: Re: A Better Question
Why does it matter if the copyright holder is the target of the parody? Can you provide any rationale for this that isn’t circular?
Re: Re: Re: A Better Question
“Why does it matter if the copyright holder is the target of the parody? Can you provide any rationale for this that isn’t circular?”
From Campbell v. Acuff Rose: “If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.[14] Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”
Although they say satire, the same reasoning would apply equally to a parody that may infringe on a copyright which is not a subject of the parody. So, it matters to the courts at least, but the GP’s dismissal of fair use altogether is a load of nonsense (and what’s with the jibe about poorly done comedy? That has even less relevance).
Re: Re: A Better Question
“that should be a choice of the copyright holder.”
No it shouldn’t. You had that chance before making it public.
Copyright is about promotion. If you do not want it promoted, keep it to yourself.
Re: A Better Question
It is already clear that parody can cause harm to a copyright holder’s interest. Often time this is the intention of parody. So why would it matter if satire caused harm?
This is a flaw in the legal system. If we cannot comment on our society anyway we see fit what does freedom of speech mean? To think that juxtaposing characters or lyrics/music in order to communicate effectively should be an actionable offense is beyond ridiculous.
People like to joke about political correctness but I don’t think this new “copyright” correctness is very funny. Intellectual Property has gotten way to far out of hand and it doesn’t make sense in our world anymore unless your stuck in the 20th century.
People that support this kind of legal rambling have lost touch with reality IMHO. The courts are clearly arbitrary and capricious when it comes to satire. Their reasoning is flawed and it is too bad no one can really call them out on it.
I generally agree with the distinction Mike wants to make, but I think with music, at least, it gets a little tricky making exemptions from copyright. With music, taking a song and changing the words (even to make political speech) would make the lyrics political speech, but the underlying music would still need to be licensed in that instance. I doubt very much that anyone would agree that anyone running for office could take the tune of a popular song and add their own lyrics and escape liability for copyright infringement on first amendment/ fair use grounds against the composer.
I agree that it’s a tough call and that each instance should be analyzed by its particular facts, however, at least with music, which can be broken up by its discreet parts (lyrics and composition), it doesn’t seem fair to argue free speech/fair use to not pay royalties to the songwriter when you’re not making changes to underlying composition. Where’s the transformative use there?
Admittedly, I have not read the Henley case, and don’t know the exact details of the dispute. However, it’s worth remembering that (for good or ill) there are sometimes multiple rights in any work and all of them need to be considered. I deal with music everyday, but I’m sure the same issues are prevalent in other mediums as well, I just don’t have any readily available examples.
Also, I know of many people that would disagree with this post on the basis that it provides an excuse for people to view existing material as free for the taking. While I agree that the first amendment and fair use are more important than royalty payments, it doesn’t mean that it’s a free-for-all when someone elsrs work is used in a political (or any other) context.
Re: Re:
Don’t tase me bro is a good example of satire that can be stifled under those rules.
Quite honestly, I think that distinction fits very neatly into the current IP system: Parody requires the use of a copyrighted work while satyre does not. Now, some of us think the whole IP system is nothing but a big fat subsidie that politicians are handing out to certain big players with lots of lobbying money, but that’s a separate issue.
I think that is fine anything that makes the products of those dinosaurs difficult to use is a win for the alternatives that are starting to show up.
What about Weird Al?
I think many of Weird Al’s “Song Parodys” would better classify as Satire under that definition.
Re: What about Weird Al?
there are a couple of things about weird al that you need to understand. first and foremost, he almost always gets full permission to use the songs (and in this modern world, he often gets the exact sounds used, etc). second, while the subject of the song may be different (and may poke fun at something else) the songs are often parodies of the original as well.
i remember an interview of his saying that he had no done a couple of songs he wanted to do because the artists wouldnt grant him the rights in a fashion that would allow him to do all that he wanted to do. it didnt stifle his free speech, he just used other music / songs from artists who appreciated the concept and agreed to be part of the joke.
Re: Re: What about Weird Al?
Actually it did stifle his free speech, because he couldn’t go with his original ideas with the songs that he originally wanted. That itself is stifling. Any restriction of any kind on creativity is, by definition, stifling.
And while we’re on the subject, what about Mel Brooks? Should he be sued into oblivion for his excellent parodies and satirical films just because they drew upon other works for reference? Half the jokes would have been meaningless without that source material to which they referred.
Re: Re: Re: What about Weird Al?
Mel Brooks probably didn’t ask for permission and that makes him a monster.
Re: Re: Re: What about Weird Al?
no, to stifle free speech would mean that he never made it, nor did he have any other outlet to do so. his free speech wasnt limited, at worst somewhat redirected. remember, he didnt have the right to start with, so it isnt like something was taken away. in each case, when the artist agrees to allow the parody or reuse of the material, weird al gained something he didnt have under the law.
nothing stops weird al from picking up his accordian and writing a new song and expressing his free speech. he is not limited in any way. trying to make any of this into a free speech issue for the artist making the parody is just wrong, because it forgets to respect the rights of the original creator. there has to be balance, not just “take, take, take” all the time.
Re: Re: Re:2 What about Weird Al?
The time for balance came and is now gone.
Copyright must die!
Re: Re: Re:2 What about Weird Al?
“no, to stifle free speech would mean that he never made it, nor did he have any other outlet to do so. his free speech wasnt limited, at worst somewhat redirected. remember, he didnt have the right to start with, so it isnt like something was taken away. in each case, when the artist agrees to allow the parody or reuse of the material, weird al gained something he didnt have under the law.”
Weird Al never made me laugh so much. More please. Seriously though.. free speech is a natural right, copyright is not. You have things entirely the wrong way around. To quote Sir Robin Jacob: “An Intellectual Property Right is essentially negative and private. It is negative in that it entitles its owner to stop other people doing things, an entitlement which will, if necessary, be enforced by the courts. And it is private because it is vested in a private owner, generally, an individual (real or corporate). The ‘right of free speech’ on the other hand is neutral or positive. Traditionally, under the common law, I suppose the ‘right’ rested essentially on the absence of any law, public or private, forbidding the conduct concerned––all that is not expressly forbidden is permitted. But in many countries the law now goes further––providing some sort of positive right of free speech. Such a law may, and indeed is intended to, come into conflict with any other law which is a law suppressing free speech: the First Amendment is an old example and Article 10 of the European Convention on Human Rights, given fresh life in this country by incorporation into domestic law, is more recent”.
Re: Re: Re:3 What about Weird Al?
Satire has also been around a lot longer than copyright but who cares about historical facts when you can just accuse people of “take, take, take” all the time.
Re: Re: Re:4 What about Weird Al?
horses have been around a lot longer than cars. i know which one i use daily, and i dont have to feed it oats.
Re: Re: Re:5 What about Weird Al?
So copyright replaced satire? Since when? You make absolutely no sense.
Re: Re: Re:3 What about Weird Al?
weird al doesnt lose his rights, nobody stifles him. he takes his satire and uses other music, and moves forward. his satire is not lost, just changes or different. his free speech and other rights dont extend past and over those of the original artists. it is a balance. it is easy to say “he should be able to do anything”, but that would negate an artists choice not to be part of something. in many ways, his satire is a bit like using music for a political campaign. mike has been all uppity about that, yet you think it is okay for someone like weird al to make social commentary with someone elses music?
double standard much?
Re: Re: Re:4 What about Weird Al?
Weird Al doesn’t do satire.
Re: Re: Re:4 What about Weird Al?
weird al doesnt lose his rights, nobody stifles him. he takes his satire and uses other music, and moves forward. his satire is not lost, just changes or different. his free speech and other rights dont extend past and over those of the original artists. it is a balance. it is easy to say “he should be able to do anything”, but that would negate an artists choice not to be part of something. in many ways, his satire is a bit like using music for a political campaign. mike has been all uppity about that, yet you think it is okay for someone like weird al to make social commentary with someone elses music?
Political activists don’t lose their rights when denied the right to express their views by the gov’t. They just take their points and express them against something else, and move forward. Their protests are not lost, just changed or different. Their free speech and other rights don’t extend past and over those politicians. It is a balance. It is easy to say “they should just be able to protest anything,” but that would negate a politicians choice not to be protests. In many ways, their protests are a bit like Weird Al making parody music. Mike has been all uppity about that, yet you think it is okay for political activists to protest politicians own actions?
See how that works?
The right to free speech does not say “well, as long as they can speak some other way, it’s okay.” The courts have denied that argument over and over and over again…. except when it comes to copyright. That’s the problem being discussed here.
Re: Re: Re:5 What about Weird Al?
“Political activists don’t lose their rights when denied the right to express their views by the gov’t. They just take their points and express them against something else, and move forward” – absolute bullshit, and you know it mike, total strawman to the max.
we are not talking about free speech denied here. weird al (or whoever) can pick up the microphone and make the same free speech at any time. nobody is denying their right to free speech. the only denial is that they cannot do it with someone elses music. the speech is not denied, only the delivery. if weird al wants to say “mike masnick is an ass” he can still say it, he is not denied.
it is amazing to think you even have the balls to post this. it proves you have no clue at all.
Re: Re: Re:6 What about Weird Al?
the only denial is that they cannot do it with someone elses music.
Just replace the word music with speech. Isn’t music just a form of speech? Or is music more than speech? Is it better than speech? Should it be more protected?
Re: Re: Re:4 What about Weird Al?
“weird al doesnt lose his rights, nobody stifles him. he takes his satire and uses other music, and moves forward. his satire is not lost, just changes or different. his free speech and other rights dont extend past and over those of the original artists.”
Hang on, a post ago you were claiming he had no rights to lose. One of yous is incorrect (well, more incorrect). I would hazard a guess that the former would be the least missed in the consistency wreck.
What is the source of this inconsistency? Your lack of distinction between rights given by law and natural rights. Until you are able to make that distinction, I don’t see how you can even discuss the issue.
Re: Re: What about Weird Al?
Asking permission to parody, what?
Re: Re: What about Weird Al?
“he almost always gets full permission to use the songs (and in this modern world, he often gets the exact sounds used, etc).”
Bald-faced fucking lie. Or you are ignorant. Coolio NEVER gave permission for “ganstas paradise” to be used for “amish paradise” and became very outspoken against the song. There are MANY others. Sure, he TRIES to get permission, but that doesnt STOP him if he doesnt.
Re: Re: Re: What about Weird Al?
You don’t need Coolio’s permission if you’re making the music yourself. However, you may need to acquire Composition license. I think this can be acquired from either The Harry Fox company or BMI/ASCAP, but I am not sure offhand.
There are plenty of “Top 15 CDs” out there that look like a good track listing, but in reality are performed by cover bands. They do this by acquiring a Composition License, and recording the song rather than acquiring the (often expensive) duo of Master Recording Rights and Syncronization Rights. Master Recording and Sync rights need to be negotiated with the artist and/or publisher.
But in light of all this, Weird Al rewrites the words or “alters the “fundamental character of the music”. Which qualifies it as parody, exempt from copyright.
Re: Re: Re:2 What about Weird Al?
However, you may need to acquire Composition license. I think this can be acquired from either The Harry Fox company or BMI/ASCAP, but I am not sure offhand.
It’s actually a mechanical license, and it is Harry Fox that handles it. (BMI/ASCAP handle radio, and live performances.)
“Wierd” Al could in fact go this route, pay the statutory royalties, and not need permission from anyone. He chooses to get the permission of the artist, mostly because he’s a nice guy.
The whole Coolio mess is especially ironic, seeing as “Gangsta’s Paradise” is itself a re-working of “Pastime Paradise” by Stevie Wonder.
Re: Re: Re:3 What about Weird Al?
Thanks for the clarification. I was unsure- there are a myriad of licenses that apply to clearing one piece of musical work. I use a third party- (a href=”http://www.musicclearance.com”> Music Clearance ) to do all the grunt work.
I believe a Mechanical License is worthless without the Sync License. Is this still the case?
Re: Re: Re:4 What about Weird Al?
Synchronization licenses are necessary when you record your own version of a song, and synch it to a visual work (e.g. use it in a film).
BMI has a pretty good introduction to the different license types. Keep in mind that when they say “copyright holder,” they’re usually talking about the composition (the underlying song), not the sound recording. The sound recording copyright holder needs separate licensing (a “master use license”).
Re: Re: Re: What about Weird Al?
No. Coolio’s manager signed off on it and said that Coolio was on board. Weird Al proceeded under the assumption that everything was OK because the manager said so.
Coolio was never told by his manager.
Ironically, “Amish Paradise” sold more copies that “Gangsta’s Paradise”, which helped Coolio to forgive Weird Al.
where's the beef?
Did this Senatorial candidate really think he could take Henley’s song, change it like that, and then use it in his election efforts?
Is this guy a lawyer? You’d think he’d know better.
I don’t buy the First Amendment argument here, political free speech or otherwise. The First Amendment doesn’t protect copyright infringement.
If this guy wanted to use Henley’s song, he should have gotten permission.
Re: where's the beef?
I want to click a button for this comment. Can TechDirt put “Parody” and “Satire” buttons on comments?
I’d like to further propose some new buttons for consideration after “Parody” and “Satire” appear:
“Irony” – click this for irony in its most ferrous form. Perhaps we can find a case (or a lawyer) to decide what distinguishes “irony” from “satire”.
“e e trollings” – click this when your lawyer believes the lower-case troll (and not a wrong and illegal imitator) commented.
“TAM” – click this when The Anti-Mike, notable for his/her/its/their large vocabulary and snide phrasing, seems to have made the comment.
Re: Re: where's the beef?
Whoops! SIlly me. I said “distinguishes ‘irony’ from ‘satire'”, when I meant “distinguishes ‘irony’ from ‘sarcasm'”.
Which sort of implies that as well as “Parody” and “Satire” buttons, “Sarcasm” and “Irony” are necessary buttons, too.
Re: where's the beef?
The First Amendment doesn’t protect copyright infringement.
The point is that the 1st Amendment is superior to the copyright statute. So in theory if the two conflict, the 1st Amendment should be given precedence in general. The reason for the fair use doctrine is so that copyright doesn’t have to be completely struck down for conflicting with the 1st. How well that balance is working is the point of this article.
Re: Re: where's the beef?
“The point is that the 1st Amendment is superior to the copyright statute. So in theory if the two conflict, the 1st Amendment should be given precedence in general. The reason for the fair use doctrine is so that copyright doesn’t have to be completely struck down for conflicting with the 1st. How well that balance is working is the point of this article.”
Thanks for the reply.
First I want to explain that the point of my reply was a defense of the judicial system. I read through the Henley decision, and it seems clear to me that the judge applied the correct law and came up with the correct ruling under the law. I’m certain that the decision would stand up to appellate review as I see no reversible error. nor has anyone here pointed out any such error. The judge here did not err, and I think it’s important people understand that. If people are unhappy with the decision, then their beef is with the legislature, not the judiciary.
I haven’t taken a class in copyright law yet (I’m in law school) but I do get the broad strokes: The limited monopolies of copyright are compatible with the principles of free speech, hence the juxtaposition in the Constitution of the Copyright Clause and the First Amendment. Congress defines the scope of the limited monopolies of copyright. Congress’ powers in that department are broad, but not limitless: The First Amendment can limit Congress’ power under the Copyright Clause, and accommodations are built into copyright, namely the idea/expression dichotomy and fair use.
I’ve been reading through some of the landmark cases on copyright law, and what I don’t see is the court agreeing with your claim that the “1st Amendment is superior to the copyright statute.” On the contrary, both are Constitutional in origin, and each must be balanced with the other. You have to take the provisions of the Constitution in concert.
Everything I’ve read just convinces me further that the defendant in the Henley case was an infringer, plain and simple. If people don’t like that, they should blame Congress, not the courts.
Re: Re: Re: where's the beef?
I’ve been reading through some of the landmark cases on copyright law, and what I don’t see is the court agreeing with your claim that the “1st Amendment is superior to the copyright statute.” On the contrary, both are Constitutional in origin, and each must be balanced with the other. You have to take the provisions of the Constitution in concert.
When a statute, even one authorized by the Constitution, conflicts with part of the Constutition, does not the Constitution take precedence? Otherwise, what meaning is there to the Constitution being the supreme law of the land?
Re: Re: Re:2 where's the beef?
“When a statute, even one authorized by the Constitution, conflicts with part of the Constutition, does not the Constitution take precedence? Otherwise, what meaning is there to the Constitution being the supreme law of the land?”
It doesn’t work that way. The Constitution both provides for copyright and free speech. The Constitution permits Congress to make laws concerning copyright, and it provides for free speech. The Constitution says that a balance must be struck between the two.
I’m just regurgitating what the Constitution, the Congress, and the Supreme Court have said on the matter… And that’s just from what I’ve read so far. If you’ve got something to back up your argument, please present it. I’m open to other ideas, but I’d say that my sources of information in this debate are controlling.
Re: Re: Re:3 where's the beef?
Aren’t you conflating the copyright clause of the Constitution with the copyright statute? The copyright clause, as I’m sure you know, doesn’t establish any copyrights, it just authorizes Congress to do so. I’m not a lawyer, but is something like the copyright statute, which is authorized by but not a part of the Constitution, treated as though it were in the Constitution? With equal legal weight? That doesn’t really make sense to me.
The Constitution also provides for Congress levying taxes, but that doesn’t mean the tax code has equal authority with the Constitution (I hope). If they are in conflict, the Constitution prevails, right? Why is copyright any different?
The Constitution says that a balance must be struck between [copyright and free speech].
Where does it say that?
I’d say that my sources of information in this debate are controlling.
Even if that’s true, this is kind of a dickish way to put it, at least to non-lawyers.
using copyrighted works for satire
Those who would criticize the use of copyrighted works for the purposes of satire as “lazy” are blind to how culture works. A successful artist’s creation becomes a part of the culture and therefore has expressive powers and resonance that other artists pick up and use as a matter of typical artistic creation. So Holden Caulfield in Catcher in the Rye became for a generation a potent symbol of adolescent alienation, and to suggest that one couldn’t use Holden Caulfield to speak with power to that entire generation is to remove from that generation an entire set of “words” with which they communicate effectively.
As to the justification of allowing parody but not satire (a distinction with which I plainly don’t agree), the idea is that fair use always allows critique and commentary of the copyrighted work. Parody is just one kind of critique and commentary on the copyrighted work. Satire, however, is not.
Re: using copyrighted works for satire
successful artist’s creation becomes a part of the culture and therefore has expressive powers and resonance that other artists pick up and use as a matter of typical artistic creation.
Indeed. The syndicated newspaper comic strip “Frazz” sometimes includes a character named “Caulfield”. The actions of Caulfield seem (to me) far funnier because of the resonance with “Catcher in the Rye”.
How sly does “satire” have to be before it can successfully fly under the radar of even zealous copyright defenders like the Estate of JD Salinger? Does a court case exist? What would a lawyer say? Does the keeness of a lawyer’s sense of humor have to be ascertained before his eminence can detect such satire, which isn’t protected speech?
Parody vs. Satire
I had never seen 2 Live Crew’s parody “Pretty Woman” and so I tracked it down on YouTube. Although it was funny and somewhat entertaining, it was nothing more than silly. Satire usually has a serious point to make and it seems to me by allowing parody that makes fun of a work and not allowing satire that can be argued to appropriate a work, that the law is lowering the quality of public discourse. The USA has a reputation as being an anti-intellectual nation, but I never realized that this reputation was so blatantly codified by our legal system.
“You’re not a lawyer, so your opinion on this is worthless”
Correction:
The opinions of lawyers also are worthless, only judges decide what matters.
interesting decision...
I just read through the decision, courtesy of EFF: https://www.eff.org/files/33049984-Order-on-Motion-for-Summary-Judgment-in-Henley-v-DeVore.pdf
The judge gives a great explanation of the difference between parody and satire, tying in some recent case law with the seminal Campbell case and codified copyright law. Definitely worth a read.
The judge saw right through DeVore’s post hoc rationalization that these songs were parodies of Don Henley. That clearly wasn’t DeVore’s real motive in creating these songs. They were meant to support his campaign while making fun of liberals in general, not Don Henley personally.
The judge found DeVore liable for direct, vicarious, and contributory copyright infringement, and all on summary judgment. DeVore dodged bullets on the willful infringement and Lanham Act claims.
This one was a no-brainer–the judge got it right.
I think people who are not happy with it are just not happy with the status quo. And that’s a different story.
So at what point do the courts (or Congress) realize that not only is this distinction pointless, but also that this is a clear situation where these so-called “safety valves” to protect the First Amendment are not working.
This is a trick question, right? They already realize it, they just don’t care.
Can I interest you in a Chevy Malibu?
Looking for a 1965 Chevy Malibu. Will trade for a wheelbarrow and a slightly used sombrero.
The engine does start but does not want to stay on because the carburator may be bad or needs rebuilding.
http://www.youtube.com/watch?v=y4sALru9IJk
Started long ago
George Carlin will go down in history for his considering it went to the supreme court for his.
So question for ya mike, is it the settle way of doublespeak that’s bothering you or something else? I kept looking for a closing or summary to this article but never saw it.
Just a few thoughts.
Re: Started long ago
George Carlin will go down in history for his considering it went to the supreme court for his.
So question for ya mike, is it the settle way of doublespeak that’s bothering you or something else? I kept looking for a closing or summary to this article but never saw it.
Just a few thoughts.
Could you please translate this into English?
I would sooner burn my hobby room full of instruments as write content that the RIAA will be suing people over using to make a joke or statement 20 years from now.
The real problem is that, in most cases anyway, musician’s and songwriters do not own the rights to their own songs. It is not up to the songwriter far too often, it is up to a greedy bunch of monopolistic extremists, those who suckered the musicians into giving up their right to decide what is done with or is derived from their own work in exchange for… a grossly overpriced studio session and marketing campaign and most likely years of lies(to the artist and their fans).
I would be a much bigger advocate of copyright if it were non-transferable, save in matters of inheritance, i.e. after the artist passes away and passes the rights to the works to their family. I imagine most artists would rather their works become public domain after they die than be absorbed into the RIAA member labels’ catalogs to be bastardized in a Toyota or Cadillac commercial at a later date.
A commercial entity is not an artist and should not be able to own exclusivity rights for other people’s art for any reason whatsoever. If the artist is dead and did not pass the right’s on to their survivor… well, that is what public domain is for.
copyright
Is it just me…? I mean maybe i don’t get it but it appears to me that some 95% (number came out of nowhere btw just throwing 1 out there) of the stories here these days are about copyright and what not. Jeez i wonder how much money is wasted paying the riaa’s legal department. In fact a story about that would proly bring a tear to tpb and friends’ eyes. Just a thought
Re: copyright
that is just the impression mike is trying to give you. the shift isnt on the riaa side, but on the wider abuses by “artists” who arent original enough to play their own music, and people more than willing to take what is not rightfully theirs.
Re: Re: copyright
Now, I’m confused. Is your comment “parody” or “satire”?
Also, did you run it past a lawyer who made judgement upon it?
Because it seems like you’re just being petty. It’s pretty obvious that the RIAA side has done the shifting, through lobbying and other means. To say otherwise has to be some form of humor-by-emphasis. I’ve always been a bit weak on the taxonomy of humor, so your lawyer should post here to inform me and other victims of public schools about whether you just posted “satire” or “parody”>
Re: Re: copyright
Original? Serioulsy, go take an art class, you might learn some things.
simple
“The right to free speech does not say “well, as long as they can speak some other way, it’s okay.” The courts have denied that argument over and over and over again…. except when it comes to copyright. That’s the problem being discussed here.”
I see no problem with this. The right to free speech isn’t absolute. And it’s limited in more domains than just copyright.
Re: simple
While I do agree that there should be some limitations to freedom of speech when there is a logical basis, like instances of slander or of “screaming Fire in a crowded theater”, I’m having difficulty grasping your logic here.
Taking someone’s most effective method of expressing themselves away and saying that they should “find some other way to do that” because of some ill-defined concept of it “harming” the original author is simply absurd.
It’s like coming into a boxing match and tying one of the fighter’s dominant arm behind their back because it’s “not fair” to the other fighter, then telling them they can still fight with their other. Oh, and the fighter’s opponent can still use both hands, because he managed cover up the “infringement” of his right hook.
It’s a handicap, and a damned arbitrary one too.
When exactly does parody become satire? If I tear apart a work at the seams in order to point out deeper social issues underlying the work itself, is that parody, or satire? I’m using the work to comment on society at that point, but the points are relevant to the work. What about using multiple works to comment on each other?
While you could say that this can be decided on a case-by-case basis, that’s a luxury only reserved for the rich. Unless legal battles get cheaper, most people can’t afford to fight back against accusations. As a result, trying to make a distinction between satire and parody invalidates both as protected speech.
Put simply, your argument has NO merit due to the simple fact that there is no adequate reason do restrict it beyond the supposed “lost profits” of the original artist. (which is already perversion of the purpose of copyright law to begin with)
Re: Re: simple
Eh. It’s difficult to bother with this one; he spends his time on Ars Technica saying that since there’s no better way to figure the current copyright scenario out than costly litigation and settlement by intimidation, you owe the industry more money than 419 scammers have allegedly stored all over the planet because each download equals a lost sale.
Exaggeration emphasised, and mine.
Re: Re: Re: simple
>>
My argument has “no merit”? Do you even know what my argument is.
>>
That is absolute NOT what I said on Ars. Get your facts straight. And if you disagree with I post on Ars, it would be better to address it there.
The EFF opinion on the matter.
http://www.eff.org/deeplinks/2010/06/henley-v-devore-second-class-citizenship-satire
With links to court decisions recognizing satire.
Re: Re:
“The EFF opinion on the matter.
http://www.eff.org/deeplinks/2010/06/henley-v-devore-second-class-citizenship-satire
With links to court decisions recognizing satire.”
I read through the page you linked to, and clicked on all the links in the article.
I see court decisions that recognize satire, but not decisions that recognize satire as fair use, which is what I think you were implying. (There was one link to a case that discussed transformative satire, but that’s different.)
If you read through the court’s decision in the Henley case, you can find a great analysis of the difference between parody and satire: https://www.eff.org/files/33049984-Order-on-Motion-for-Summary-Judgment-in-Henley-v-DeVore.pdf
I find it very suspect that the EFF posts things like: “So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.”
I understand that not everyone falls on the same side of this debate. This doesn’t mean one side is right and the other is wrong, as reasonable minds may differ. And it certainly doesn’t mean that the judge got it wrong. Show me the reversible error.
Looking at the bright side this is one more politician that will fight to enact laws that will lessen copyright for us all, since he has tasted the bitter remedy some fools in Washington are passing as law today.
Judges are flummoxed, too, as they wrestle with new questions about protections on student speech and school searches.
http://www.nytimes.com/2010/06/28/style/28bully.html?th&emc=th
A few states say that school conduct codes must explicitly prohibit off-campus cyberbullying; others imply it; still others explicitly exclude it. Some states say that local districts should develop cyberbullying prevention programs but the states did not address the question of discipline.
Judges are flummoxed, too, as they wrestle with new questions about protections on student speech and school searches. Can a student be suspended for posting a video on YouTube that cruelly demeans another student? Can a principal search a cellphone, much like a locker or a backpack?
It’s unclear. These issues have begun their slow climb through state and federal courts, but so far, rulings have been contradictory, and much is still to be determined.
http://www.nytimes.com/2010/06/28/style/28bully.html?th&emc=th
“Aren’t you conflating the copyright clause of the Constitution with the copyright statute? The copyright clause, as I’m sure you know, doesn’t establish any copyrights, it just authorizes Congress to do so. I’m not a lawyer, but is something like the copyright statute, which is authorized by but not a part of the Constitution, treated as though it were in the Constitution? With equal legal weight? That doesn’t really make sense to me.”
From what I’ve learned and read so far, Article I powers are on par with Amendments. I don’t see why they shouldn’t be. Just because one authorizes Congress to create laws for copyright and the other prohibits restrictions on free speech doesn’t mean one has to win every time. It means they must be balanced.
I read a few Supreme Court cases last night that explained this pretty well: Eldred v. Ashcroft, Sony Corp. v. Universal City, Harper & Row v. Nation Enterprises. Maybe look those up and give them a read if you want some court insight.
“The Constitution also provides for Congress levying taxes, but that doesn’t mean the tax code has equal authority with the Constitution (I hope). If they are in conflict, the Constitution prevails, right? Why is copyright any different?”
Are you saying that you don’t have to pay taxes on constitutional grounds? Where’s the Article I power that is to be balanced by an Amendment? Where’s the conflict? I don’t get the argument. Sorry.
“Where does it say that?”
The Supreme Court says it. See the cases I mentioned, supra. Where does it say Amendments trump Article I powers? That’s the question I’m asking you.
“Even if that’s true, this is kind of a dickish way to put it, at least to non-lawyers.”
Sorry if I sound dickish… that’s not my intent. I’m just wondering what the basis is of your argument.
Re: Re:
Are you saying that you don’t have to pay taxes on constitutional grounds? Where’s the Article I power that is to be balanced by an Amendment? Where’s the conflict? I don’t get the argument. Sorry.
I’m not saying there *is* a conflict. I’m saying that if Congress were to put something in the tax code that says that (ridiculous example) you have to pay off part of your income tax debt by quartering soldiers in your house, that would conflict with the Constitution. But you’re saying those two laws would be on equal ground, and the tax code amendment would not automatically be struck down?
“Where does it say that?”
The Supreme Court says it.
Ah OK, you said “the Constitution says” and I didn’t remember reading that anywhere in the Constitution. Same level of authority, but not the same place.
Where does it say Amendments trump Article I powers?
I don’t mean that they trump the powers themselves, but those powers are enacted via legislation, which I always understood to be subordinate to anything actually in the Constitution.
Sorry if I sound dickish… that’s not my intent.
I know it’s not.
I’m just wondering what the basis is of your argument.
Just based on layman’s understanding that anything passed by Congress is inferior to the Constitution. But you’re saying that is not the case. I’ll see if I have time to read about some of those court cases.
Re: Re: Re:
“I’m not saying there *is* a conflict. I’m saying that if Congress were to put something in the tax code that says that (ridiculous example) you have to pay off part of your income tax debt by quartering soldiers in your house, that would conflict with the Constitution. But you’re saying those two laws would be on equal ground, and the tax code amendment would not automatically be struck down?”
Gotcha. If there were a conflict like that, the Supreme Court could overturn it either way. They’re the case-by-case interpreters of the Constitution. And they change their minds too, which is part of the fun. 🙂
I’ve enjoyed the chat. Have a great one!
English and Keywords
Well this is just a theory, but the parody/satire distinction could very well be an issue of word orgin or in America, just how the two words sound to each other. Many might gravitate to parody, rather than satire. why, who knows. Maybe Google Adwords is responsible.lol