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HI :)

Me and some friends have been writhing a lyric for a comedy show we had in 2012. But we have used some other peoples melody/song to our lyric. we did a live recording of the song, so my question is: Can we put it on spottily or would it beak the copyright? And who do we need to contact go get permission?

Answer
Hello Fredrik-

It sounds like you have made either a "Parody", or a "derivative work".


First things first, read my article on Owning Master recordings. Once you have a good handle on everything in my article, then we can talk specifics on the Derivative Work or Parody.

http://drfordmusic.blogspot.com/2011/08/who-owns-masters-information-every.html

Now that you have read that article... read this.



Defining Fair Use

It is an American tradition to poke fun at, criticize and imitate cultural and political icons. However, that tradition could get you sued. There is a defense in copyright cases called "fair use." Section 107 The Copyright Act of 1976 outlines what a court has to consider when determining if something is fair use:

1) Purpose and character of the work

2) Nature of the work

3) Amount and substantiality of the portion used in new work

4) Effect of the use upon the potential market for or value of the copyrighted work

What this means is courts go through four steps, the first of which is to look at whether the creator of the new work did it as social commentary or financial gain. Next, they look at whether it is parody, satire, criticism and if that purpose is obvious in the content. A judge will also consider how much of the original work is included, and whether the will hurt the present or future sales of the old work.

2 Live Crew Remixes Pretty Woman

The leading case on fair use as it pertains to musical parody is Campbell v. Acuff-Rose Music. It put Luther "Luke" Campbell against Roy Orbison's record label over a bawdy 2 Live Crew remake of the classic "Oh, Pretty Woman."

Campbell asked the record label for permission, but were refused. They remade the song anyway, giving credit to Orbison and the record label. The label sued, and the case made it to the Supreme Court. The Court compared the song to the original before applying the four steps. The justices decided that the 2 Live Crew version "commented on" the earlier song and seemed to criticize it. They said that part of the content, along with the original rap lyrics, parodied the Orbison song. The court reached a unanimous decision that parodies fell under the fair use defense.

The First Amendment Could Free Weird Al's Speech

The First Amendment is often used to defend against copyright violations. Artists argue that parody falls within the right to free speech. When analyzing this defense, courts weigh the value of the work as social criticism against it being construed as entertainment. They will also look at the interest in encouraging social debate against the copyright owner's right. If the work is more on the "entertainment" end of the spectrum, then the defense is more likely to fail.

While his work certainly qualifies as parody, if he wanted to Weird Al Yankovic could probably use a free speech defense. Despite having made a career out of parody that is for personal financial gain, he has not been sued for his antics. It is also clearly meant to be satirical social commentary, which would pass the First Amendment test.

Most of the time, Yankovic avoids these issues by simply asking the original artists for permission. He often gets it, as many artists see his parodies as a type of backhanded compliment. The only person known to say no to him recently has been James Blunt, albeit through his record label. Yankovic wanted to turn "You're Beautiful" into "You're Pitiful."

Use That Clearly is Not Fair

One action that does not pass muster under any test is using an entire original work in the creation of another. This was the conclusion in a New York district court decision involving Walt Disney productions and an adult film company. Disney sued for copyright infringement when the company used the entire "Mickey Mouse March" during a scene depicting sexual intercourse. The court determined that using an entire work is not fair use. It also said that the use was purely for financial gain and had no artistic value or value as social commentary. Therefore, it could not fall under the parody defense.

The Limits of the Law

Essentially, there are three ways to avoid or defend yourself against a copyright infringement suit if you are using someone else material: ask for permission, prove that your work falls under First Amendment free speech protection, or show that it is fair use. One of the ways to use the fair use defense is to show that your work is a parody or satirical in nature.






Let me know if you have any further questions or need clarification on this. As always, I am NOT A LAWYER and I CANNOT GIVE LEGAL ADVICE, so I strongly recommend you talk to an Intellectual property Lawyer and get real guidance if you begin to make money on this enterprise.

Thanks!!!!
Doc

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DrFord

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I can answer questions about; Recording Theory and hardware, advanced music theory and application, songwriting, industry level audio production / mixing / mastering, copyright, publishing, recording hardware and software, and musical instruction.

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As a Producer and Composer, I have music featured in over 100 MTV / VH1 / E! network shows, and several international feature films. As a full time audio engineer, producer, and songwriter I have worked with industry greats, mentored up and coming artists, and have dedicated my life to music and music education. My production tutorial series is available online at http://www.groove3.com/str/from-drop-to-top.html is featured alongside Grammy award winning engineers and has received critical acclaim internationally.

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Authorized Pro Tools Users Forum - "DUC" duc.digidesign.com Music Tech Magazine (future publications)

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I am a certified Pro Tools operator, Music Theory and Audio Engineering degree holder from M.I. Hollywood, and authorized trainer of several applications.

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