Fair Abuse

As some of you know, I have a background in the theatre and arts world.

Recently, a theatre professional in my network mentioned that he was working on a stage musical and wanted to use certain other existing (copyrighted) songs – but with the lyrics changed for satirical effect. He wanted to know if it would be “fair use” of these copyrighted songs to do so.

“Fair Use” is a term that is bandied about so much in conversations about copyright that it is important to understand what it is – and is not.

If something is protected under copyright, other people are restricted from using it without some sort of license or permission to do so. Simple Example: When you buy a music CD (or, as the technological case may be, buy and download a song on iTunes), you are purchasing a limited license to play that music for your (and, reasonably speaking, your family and friends’) private enjoyment.

Under the doctrine of Fair Use, we can use portions of copyrighted works without licenses or permissions to a very limited extent because of our First Amendment rights to express our opinions about things. For instance, reviewers of film, stage, and music can insert small snippets from the work in their review such as may be necessary to review the work.

Fair Use, however, is one of the most abused doctrines in our society because of how people misunderstand it. Many people commit outright copyright infringement and try to claim that it is protected by Fair Use. One needs only look no further than YouTube to confirm this. Users post tons of copyrighted material (not their own) on YouTube (especially scenes from TV shows and movies, as well as songs), and then become surprised and upset when YouTube takes their posts down. Many people, in a woeful misunderstanding of copyright law, even seem to think that if they include a disclaimer that the material isn’t theirs and it belongs to someone else, this exculpates them. Nothing could be further from the truth. Indeed, it only serves as an admission that they are knowingly infringing someone’s copyright.

They try to claim that this is all covered under Fair Use, but they are wrong.

To be honest, many of these people believe that “Fair Use” means that it is okay to break the law a little bit. Unfortunately enough, they misunderstand the very limited extent to which use of these copyrighted materials is permitted.

It was refreshing for me, therefore, to hear from someone who had some grasp of the concept.

As my colleague was aware, Fair Use most often comes up – and is frequently successfully defended – in the realm of parody and satire. For instance, in one famous case, the United States Supreme Court – in a unanimous decision – reversed a lower appellate court ruling and ruled that the rap group 2 Live Crew did not commit copyright infringement with their parody of Roy Orbison’s Oh, Pretty Woman, even though 1) they used some of the lyrics and the bass line from the original and 2) their song was commercially successful (i.e., making money). Additionally, in another well known case, an appellate court vacated a lower court’s injunction against publication Alice Randall’s parody of Margaret MitchellGone With the Wind – entitled The Wind Done Gone.

Still, not even these First Amendment rights to satirize will protect excessive copying. In the latter case, both the appellate court and lower court found that Randall’s parody excessively copied the original Gone With the Wind; in the former case, the Supreme Court remanded the case to determine whether 2 Live Crew excessively copied Orbison’s original song.

Only one thing is clear then: Fair Use defenses must be evaluated on a case-by-case basis. Anyone who anticipates asserting a Fair Use defense (and anyone wishing to combat such a defense in their own copyright infringement suit) should consult an attorney right away.

Therefore, because of the case-by-case nature of this area of law, the only so-called “blanket advice” I could offer my colleague was the following:

• When in doubt, get permission (or, at least try). Even celebrated pop song parodist Weird Al Yankovic seeks permission for all of his songs.

• Ask yourself if it really is truly necessary to have your work be so similar to the original. Often, you can achieve your artistic goals while being truly, 100% original.

• Talk to an attorney, because if you’re putting this much time and effort into a work of art in which you truly believe, there is no point in skimping on the legal protection to save a few bucks (especially because it could be more costly down the road if you don’t get qualified legal advice).