Satire, parody, fair use, or what?
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"The principle of collage is the central principle of all art in the twentieth century." -- Donald Barthelme (1931-1989)
The contents of this site are not intended and should not be taken as legal advice.
This blog is an ongoing exploration of issues related to copyright and fair use in our contemporary digital culture. The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. The students wrote cross-motions for summary judgment in a fictional lawsuit brought by the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the real-life creators of an actual recording entitled "K Cera Cera." K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The second half of the students, of course, represented the Defendants. In the course of the students' work in researching and writing their summary judgment briefs, the professor and the students posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense. The relevant documents the students had to work from were the following:
(1) Plaintiffs' Complaint filed in the fictional action.
(2) Defendants' Answer filed in the fictional action.
(3) Excerpts from the deposition of Joyce Hatto, Senior Director of A&R for Defendant Arista Records.
(4) Excerpts from Plaintiffs' Responses to Defendants' Requests to Admit.
(5) A discussion regarding ASCAP's standing as a plaintiff is contained in the comments to William Patry's blog post here.
In light of the timeliness and open-endedness of the issues raised by the fictional lawsuit, the blog will continue despite the completion of the project and of the school year.
4 comments:
Hmm. I want to answer Yes AND No to each. Yes, this is a parody/satire of sorts, but not really of the author's original work (Guthrie's song). The point of this is to parody Bush and Kerry, and JibJab just used a Guthrie song to do so. In the Campbell case, the Court stated that, essentially, a parody for fair use purposes uses an old work to make a new work that comments on the original author's work. This clip comments on Bush and Kerry, not on "This Land." So it is a parody, but it does not parody the copyrighted material. Therefore . . .no fair use?
I believe it comments on the original song quite well.
A parody's purpose need not be limited to one point. This work did take an old work and made an arguably new one. The lyrics have all but completely changed. Saved from the chorus, arguably the 'heart of the work' every line is different.
Furthermore the song demonstrates that regardless of which side of the political isle you stand on, this land is no longer yours.
It completely destroys the image conjured by the original work. Taken as a whole this song can be seen as a satire, but since the original work is a least targeted by the new work it can qualify for parody.
Sure it comments on the original work, but does that make it a parody entitled to the fair use defense under Campbell? Any work of appropriation art comments on the original which it appropriates. But it usually does so in the course of making another point. So if the JibJab video is a parody of This Land is Your Land, it would seem to me any piece of appropriation art would be considered a parody of any work it had appropriated.
Appreciate you bloggiing this
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