My final project will be a parody of South Park. I will create a parody by using original South Park episodes and editing clips from any of its ten seasons, in order to transform the original work and give the show a new narrative. My bibliography contains research on the copyright issues related to video mashups, particularly focusing on the factors that constitute whether a work of art is considered fair use or a copyright infringement, thereby examining the legality of my work as a parody. Research into synchronization rights is also included as it plays a major role in video mashups.

Boosey & Hawkes Music Publishers v. Walt Disney (1996)

The original version of the licensed musical composition by Stravinsky in 1913 was licensed to Disney synchronization and performing rights, having valid licenses from ASCAP. Stravinsky’s music publisher Boosey & Hawkes filed lawsuit against Walt Disney for altering the original musical composition, asserting that the narration within the video and the promotional piece which accompanies the deluxe commemorative edition of the video gives a false impression that the video features Stravinsky’s original composition. The Stravinsky license was issued at a time when film producers obtained licenses from the music publishers for music synchronization rights and motion picture theatres obtained separate licenses from ASCAP for music performance rights. However, the Justice Department antitrust action against ASCAP prohibited members of ASCAP from granting music synchronization rights to any film producer unless the member, or ASCAP, granted corresponding music performing rights. In regards to Boosey’s claim for breach of contract within the ASCAP condition in the license, the court held that the failure to fulfill the condition meant that the use was unlicensed and that such unlicensed use may be an infringement of copyright where such protection exists; however, there was no breach of contract. Therefore, Walt Disney retained its synchronization rights to alter the original musical composition within video format. In relation to my project, I will most likely be infringing on the copyright of whichever musical piece I choose to add to the video mashup, as I have not acquired synchronization rights to be used along my visual medium.

CAMPBELL v. ACUFF-ROSE MUSIC, INC (1994)

Acuff-Rose Music, Inc. filed lawsuit against the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew's song, "Pretty Woman," infringed Acuff-Rose's copyright in Roy Orbison's rock ballad, "Oh Pretty Woman."  The District Court had ruled that 2 Live Crew’s song was a parody of the original; however, appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair for the purpose of the parody (first factor of the fair use doctrine), that by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had taken too much (third factor), and that market harm for (fourth factor) had been established by a presumption attaching to commercial uses.  The courts decided that the song fell into the proper categories of fair use, detailing the four different aspects of fair use and how the song accomplishes each of them.  2 Live Crew’s version was transformative and would not harm the reputation or financial gain of the original work.  The final decision of Campbell v. Acuff-Rose, ruling the work as parody and therefore satisfying fair use judgment, leads me to believe that my transformation of the South Park’s narrative through film clips will be considered fair use and a parody of the original work.

“Parody: Fair Use or Copyright Infringement” – Lloyd L. Rich

Rich begins his article by defining parody as the imitation of a serious piece of work, such as literature, music or artwork, for a comical effect. Parody, as a method of criticism, has been a very popular means to communicate a particular message or point of view to the public, and thus must inevitably use another creative work, creating an inherent conflict between the parodied and the creator of the parody. Rich cites Copyright Act in Section 107 as enumerating four fair use factors that should be analyzed when determining whether a particular use of a copyrighted work is considered fair use: the purpose and character of the use (whether commercially motivated or nonprofit educational), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work, the effect of the use upon the potential market for or value of the copyrighted work. Rich states that a court takes into consideration each of the four factors when evaluating fair use defense, and that no single factor by itself is sufficient to prove or disprove fair use. In creating a parody, we all must take into account each of the fair use factors:

1) educational purpose for a class assignment, noncommercial, hopefully transformative and giving new meaning to the narrative

2) nature of copyrighted work is creative and for entertainment, published and open to the public

3) only a few clips from a few episodes will be used, copyrighted work will not be copied in its entirety

4) parody will not attempt to substitute or compete with the show itself as they are in different markets (mashup vs. TV show), and if anything, will stimulate interest to the audience

After defining the terms of use for my project, I believe my video mashup falls under fair use terms.

Abilene, Range Road and Quartet Music v. Sony Music, November 2004

Abilene, Range Road and Quartet Music, the owners of the copyright to Wonderful World (a frequently-recorded song made famous by Louis Armstrong) filed an infringement lawsuit against Sony Music.  Hip-hop artist Dennis Coles, who is known to his fans as Ghostface Killah, copied the first verse of Wonderful World in a recording titled The Forest on his album Bulletproof Wallets.  First, three lines of the first verse were copied.  Second, Coles made slight changes to the lyrics he copied, substituting slang for marijuana in place of Wonderful World's references to trees and flowers.  Abilene argued that The Forest was a satire directed at modern society rather than a parody of Wonderful World.  Abilene also argued that The Forest could harm the market for rap derivatives of Wonderful World.  Judge Lynch was not persuaded and found that "The Forest is not a rap version of Wonderful World" at all. Instead, "The Forest's rendition of Wonderful World is simply a quotation that stays relatively true to the melody, form, and genre of the original; only after finishing the quotation does the song's hip-hop beat and rap-style lyrics begin." Therefore, because "The Forest does not transpose Wonderful World into the hip-hop genre, it could not possibly supplant the market for non-parody hip-hop versions of Wonderful World," the judge concluded.  Judge Lynch ruled The Forest as a parody and not satire, concluding that, "the primary aim of The Forest is to portray the modern world as corrupted and venal," the judge explained, "and it uses Wonderful World to underscore that message, by providing an ironic contrast to the body of the song."  Thus, the court concluded that the copied verse was not a satire on society, and was indeed fair use parody.  This is another lawsuit directed at distinguishing between parody and satire, an important distinction to be made when one tries to claim fair use against copyright infringement.

Stanford University Libraries does a great job summing up the idea of fair use in the context of copyright law and touches upon the four factors judges consider when determining whether a work of art upholds the fair use doctrine. In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work. Fair use is also a defense against infringement. Such uses can be done without permission from the copyright owner. Most fair use analysis falls into two categories: commentary and criticism; or parody (a work that ridicules another, usually well-known work, by imitating it in a comic way). When a fair use dispute is at hand, judges tend to break the argument into four categories as noted below, then decide from the factors whether or not the work overall is considered fair use.

The four factors of fair use:

1. the purpose and character of use (has the material been used to help create something new, or merely copied verbatim into another work?)
2. the nature of the copyrighted work (more leeway to copy from factual works such as biographies than from fictional works such as plays or novels)
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market (depriving a copyright owner of income is very likely to trigger a lawsuit)

Fair use lies within gray boundaries, thus disputes are best reviewed case-by-case. For example within my video mashup project, each factor must be looked at in order to determine whether my parody withstands copyright infringement.

April 30, 1997 Copyright Infringement Dr. Seuss Enterprises v. Penguin Books USA

Penguin Books distributed 12,000 copies of a book done in the style of Dr. Seuss's The Cat in the Hat (Titled: The Cat NOT in the Hat! by Dr. Juice, a tonguein-cheek rhyming summary of the O.J. Simpson double murder trial).  Penguin Books USA and Dove Audio Inc. were sued by Dr. Seuss Enterprises Inc., the owner of the copyrights and trademarks in the works of Dr. Seuss (aka the late Theodor S. Geisel) for copyright and trademark infringement.  The Ninth Circuit U.S. Court of Appeals found that the book is not a parody of The Cat in the Hate, but is rather a satire and therefore does not qualify as a fair use under the fair use exemption of the 1976 Copyright Act.  In its examination of the four fair use factors articulated in the Copyright Act, the circuit court found that all of them tipped the scale away from a finding of fair use.  On the issue of the purpose and character of the work, the court cited to the U.S. Supreme Court's decision in Campbell v. Acuff-Rose Music Inc., 114 S. Ct. 1164, 1171 (1994), in which the court drew a sharp distinction between parody, which is exempt under the fair use exception, and satire, which is not.  “A parody needs to mimic the original because it is commenting on that work, but a satire can stand on its own two feet and so requires justification for the act of borrowing,” the Supreme Court said.  This court ruling shows that parody and satire undergo distinct ramifications, and that it is important to distinguish the two when the legal system comes into play.

The American Society of Composers, Authors, and Publishers (ASCAP) formed in 1914 to license the public performance for profit of musical compositions copyrighted by its members, who retained the right to mechanically record, print, publish, and vend.  ASCAP licensed blanket licenses covering works of all of its members at an annual fee, in return members received a share of the license fees.  ASCAP regulated public performances of music and gave infringers the alternative of taking a blanket license or facing suit for infringement.  Individual ASCAP members licensed motion picture producers to synchronize desired musical compositions on a film.  The federal district court later ruled that ASCAP’s monopolies on copyrights violated the Sherman Act.  This in effect restrained ASCAP from refusing to grant performing rights to producers when granting synchronization rights (which are needed to record songs, music, or lyrics in films or other visual media), and restrained its members from licensing these rights to anyone but producers.  ASCAP was later prevented from splitting the licensing of the performing rights from the licensing of the synchronization rights.  However, it can be argued that where the copyright holder splits off the synchronization from the performance right, “he has elected to take his entire reward on that synchronization right and should not be permitted any further licensing” (United States v. Masonite Corp.).  This article ties in regulations of the ASCAP and producer’s rights to synchronization as well as performance, the former of which is necessary for use in video mashups that utilize music in motion picture.

Decherney, Peter. "From Fair Use to Exemption." Cinema Journal 46.2 (Winter 2007), forthcoming.

This article makes an interesting argument on whether exemptions from the DMCA can be made when fair use is harmed, particularly making a plea to the US Copyright Office to exempt media professors to make clips from DVDs for class use without the action (at the time of petition) considered illegal. Exemption always exists alongside fair use, and while the DMCA allows for exemptions to certain provisions, it does not exempt fair use. The DMCA’s anti-circumvention provision prohibits bypassing of the digital encrypted media, or DRM, needed to make clips from DVDs—thus, making copies is illegal even if use of the copy is considered fair use. DRM restriction interferes with scholarship and teaching, and media educators should have the right to teach university students with clips from DVDs without limiting education. The four other DMCA exemptions similarly are constructed as being a category of work limited by technology; thus, this appeal should not be any different as it is likewise a class of work defined by its interaction with an institution, a library. Naturally, the advancement of technology constantly transforms copyright policy, and the crucial step indicated is that copyright norms existing now will determine the future of fair use, and currently we are in a state of fluid academic use appealing for a culture of permission without breaking DMCA regulations. "Exemptions are not a substitute for fair use."

"When is Parody Fair Use?" - Robert Posner 

A parody takes parts or aspects of another expressive work.  If that work is copyrighted, why isn’t the parodist an infringer?  Parody is considered ‘fair use’ under copyrighted law and is therefore considered lawful.  It takes from a piece of work but injects creativity into it—taking characters, incidents, dialogue, or other aspects and creates a new work.  The risk of infringement arises when the parodist extracts certain copyrighted elements of the original work—the parody is a derivative work and the copyright holder controls it.  However, the fair use doctrine stipulates, in economic terms, that when the “costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting,” the derivative work is considered fair use.  This includes economizing on other transactions and stimulating the production of intellectual property, e.g., arousing public interest through use of book reviews.  Parody is a form of limited criticism, may supply a part of demand for the original work, and does not always ridicule or criticize the original work.  It is different from a book review in that it does not introduce new material to the public; audience acquaintance with the work renders the need to steal much less.  Within terms of fair use, parody should use the parodied work as a target and not a weapon, should not take a large fraction of the original work so as to reproduce it entirely, and the relative minimum work taken will not redeem the infringement.   Often parodies achieve a common effect and not at the expense of the original work of art.  In relation to my project, I will create a parody of the popular show South Park by virtue of a video mashup, and we will see how this translates into fair use.

Lessig, Lawrence. Free Culture The Nature and Future of Creativity. Penguin Books: New York, 2004. pp100-107.

Lessig’s chapter focuses on the act of transforming a previous work of art, and the copyright repercussions of using derivative work. He gives an example of how Alex Alben, a lawyer working at Starvave, Inc., spent one year simply clearing the rights to reuse actual film clips from all the movies in Clint Eastwood’s career. It was essential to clear rights to the music, screenplay, director, every single person who appeared in the films (actors, stuntmen, etc.), and anything else used in these film clips. The problem lay in the fact that a fine line in clearing rights does not exist. Every actor in each of the films could have a claim to royalties for the reuse of that film, every musician could have a claim on the musical score, etc. Thus, the best thing to do is to go about it systematically--decide the amount to pay and clear every single right (or as much as you can). Lessig makes the argument that a statutory license for someone to pay and be free to make derivative use of clips would make the process of clearing rights much easier. In the end, sampling of derivative work should be considered “fair use,” yet the costs of negotiating the legal rights for the creative reuse of content are astronomically high. Lessig states, "Either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers--again a privilege, or perhaps a curse, reserved for the few."

This chapter is related to my project in that I am arguing to be free to make derivative use of clips. Since the episodes are copyrighted, I technically should go about clearing the rights of the clips, unless I stand on the grounds of fair use, which in itself is an uncertain subject that is ruled on case-by-case.