I've been thinking about Weird Al Yankovic. This came up at trivia a couple weeks ago and Peter and I argued about whether Weird Al could be infringing copyrights or whether his works are protected parodies. The argument got perhaps too passionate. Peter sometimes confidently makes assertions that I think are incorrect, and I do exactly the same thing. But here's a stream of thought from someone who is not a lawyer.
Weird Al always gets the original artist's permission before releasing a song, and he's never been sued, so it's not really clear what kind of legal standing he might have.
I guess there haven't been very many parody copyright lawsuits, especially with music. Usually parody issues are libel or defamation issues, and it's easy to see how parody shouldn't generally be considered libel or defamation. A fake parody news story about George Bush eating babies or something isn't really defamation because it's so outrageous.
In 1989, 2 Live Crew released a song "Pretty Woman" which copies a few seconds of the oldies song's chord progression, but for the most part just has a guy rapping intentionally off-key about women's fashion. The appeals court said that this parody wasn't fair use because of its commercial character, but then the Supreme court ruled that the commercial character of the song doesn't mean the parody isn't fair use. I just listened to the song for the first time now and it's probably like 97% dissimilar to the original.
Firstly, does Weird Al's work really constitute parody? I'm not convinced that it does. A parody is an imitation that makes a comment on the original. Stephen Colbert makes fun of right wing pundits through his imitation. The movie Hot Shots makes fun of Top Gun.
I'm not a Weird Al expert, but do his songs really comment on the original song? The Weird Al song "Eat It" is supposedly a parody of Michael Jackson's "Beat It". I don't know many Weird Al songs, but I know a little Michael Jackson. "Beat It" is about persevering in the face of oppression or defeat. From the lyrics, "Eat It" is encouraging someone to eat his dinner. I don't see any more depth than that, honestly. Maybe some of Weird Al's other songs are more clear on their commentary.
From the supreme court: "For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.... 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."
And: "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."
(the court's written opinion in the case of a Dr . Seuss parody book about the OJ Simpson trial, The Cat NOT in the Hat! The court noted that factors contributing to this being not fair use were that the parody work was both nontransformative and commercial, descriptions that probably apply to Weird Al's songs as well.)
It seems to me, though you may say I'm biased because I've never been a big Weird Al fan, that Weird Al "merely uses the music and lyrical rhythms of a popular song to get attention and avoid the drudgery of working up something fresh." This sounds like a very accurate description to me. And while we can say that Weird Al, in a conventional sense, creates parodies, according to legal definitions at least a few of his works are not parodies but are instead satire.
Secondly, doesn't Weird Al duplicate, in its entirety, the music of the original? He's not just sampling it or being influenced by it. I guess he pays royalties for the music. It's strange, a bunch of webpages say that he's obligated to pay royalties but isn't obligated to get the original artist's permission. How does that make sense? Is there a standard royalties rate, and if I pay you that amount then I have the right to do whatever I want with your music. Silly. Try publishing a Harry Potter fan fiction without permission, and then just sending JK Rowling some royalties. See where that gets you. This is the kind of nonsense you'll find online. (Uneducated opinions. Including this one I'm posting right now.)
Maybe someday Weird Al will get sued and this parody/fair use issue will be more clear. (And the "royalties without permission" rumors.) Unlikely though. He appears to have very good self control about not releasing songs that will provoke in a lawsuit.