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COPYRIGHT INFRINGEMENT

FAIR USE AND PARODY

When someone else covers one of your songs, the song's copyright owner, (you and/or your publisher), is usually entitled to payment. That payment may come from mechanical royalties, public performance income, synchronization fees, print revenue, or some other form of licensing arrangement. Specific permission from the copyright holder is not always required. One example is mechanical royalties, which a record company pays the copyright holder for the privilege of including the song on cassette, CD, or other mechanical reproduction. When the parties have not reached a specific agreement, the law provides for a compulsory mechanical license payment, which has recently been raised to 9.1 cents per song per record for songs up to 5 minutes in length, and 1.75 cents per minute or portion thereof for songs over 5 minutes in length.

When a song is covered and placed on record without the copyright owner's permission, or without the payment of a compulsory license payment, the copyright has usually been infringed. A successful suit for copyright infringement can yield actual damages, additional damages, and reimbursement of the victorious copyright holder's attorney's fees. In addition, the court may order the seizure of the offending articles and enjoin the losing infringer from further unauthorized use, under penalty of further fines or even jail time.

But not every unauthorized and unpaid for use is an infringement. A common defense is "fair use." Section 107 of the Copyright Act defines fair use as reproduction "for purposes such as criticism, comment, news reporting, scholarship, or research." For example, a record review which includes a few lyric quotes, or a news report which includes a small amount of film of an outdoor concert may be fair use, requiring no payment to or permission from the copyright holder.

The recent US Supreme Court case of Campbell v. Acuff-Rose held that parody can also be fair use, in which case the parodist need not obtain permission from or pay royalties to the original work's copyright holder. The case involves 2 Live Crew's rap recording "Pretty Woman," a raunchy re-write of Roy Orbison's "Oh, Pretty Woman." Interestingly, 2 Live Crew first sought permission from the copyright owner, Acuff-Rose, and offered to pay royalties, but was rebuffed. 2 Live Crew's recording wound up selling nearly a quarter of a million copies and Acuff-Rose sued for copyright infringement.

The trial court ruled that the 2 Live Crew version is a parody, that parody is a form of criticism and comment, and that it is therefore "fair use" and protected from infringement suits. Acuff-Rose appealed. The next court up the ladder, the 5th Circuit Court of Appeals, agreed with Acuff-Rose, holding that the purpose of the 2 Live Crew version was not comment or criticism, but to make money, and that so much of the original song was copied, (particularly the repeating bass riff which is the song's hook) that it was not a protected fair use. 2 Live Crew appealed to the Supreme Court. Despite what you may have heard or read, the Supreme Court did not resolve the case by ruling that 2 Live Crew's parody is fair use. Rather, the Court ruled that parody can be a form of protected fair use, and then sent the case back down to the trial court to determine whether this particular parody is, in fact, fair use.

The Supreme Court specified several factors which must be considered on a case by case basis, to determine whether a particular parody is protected fair use. These factors include the purpose of the parody and the amount of the original used, but no one factor is conclusive. The Court wrote that just because a parody is recorded for a commercial purpose does not mean it is not fair use. Most fair use, whether news reporting, reviews, teaching, etc., is done to put money in someone's pocket. Similarly, the Court warned that the extent of copying is not determinative either, for in parodies, you have to mimic the original to make your point. The parodist has to copy enough of the essence of the original to make it recognizable to the public. The Court also seemed to say that neither of the lower courts or the parties had given enough attention to yet another factor, the damage that may have been done to the original copyright owner by diluting the potential market for other rap versions of the song which might not be protected fair use parodies. The fact that 2 Live Crew sought permission and was denied, did not hurt them as some sort of legal admission, (although seeking permission, along with having healthy record sales did probably serve to draw Acuff-Rose's attention, without which there would have been no lawsuit.)

The Court was careful to point out that not every unauthorized cover of a song can be protected from infringement actions by claiming that the cover version is a parody. What, then, made 2 Live Crew's "Pretty Woman" a parody as opposed to an infringement? The trial court ruled that 2 Live Crew's version, while using the original's music, and it's first lyric lines, "quickly degenerates into a play on words, substituting predictable lyrics with shocking ones" to show "how bland and banal the Orbison song" is. A dissenting judge on the Court of Appeals, who agreed with the trial court, wrote that the 2 Live Crew song "was clearly intended to ridicule the white-bread original" and "reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance." The Supreme Court, while agreeing that the 2 Live Crew version is a parody, "specifically decline[d] to evaluate it's quality."

The Supreme Court defined parody as "the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that [prior] author's works." This seems to suggest that the Court will be more sympathetic to parodies that target the song being copied, as opposed to parodies which use someone else's song to poke fun at something else altogether.

Question - Isn't rap music, with its emphasis on beat, de-emphasis of melody and chords, and often bawdy, angry lyrics so alien to the sensibilities of all these judges, that any rap treatment of any older song would seem to them to be a parody? Does the judges' own cultural orientation serve to give rap a special protection by reading some sort of "criticism and commentary" of the original into its very style? Would they be more or less likely to hear Van Halen's 1982 rock version of Orbison's "Oh, Pretty Woman" as a protected parody, because it is closer to what they can recognize as a cover?

It will be interesting to watch how the case is handled as it makes its way through the judicial system a second time. The 2 Live Crew version appeared on their album "As Clean As They Wanna Be" which was a response of sorts to the obscenity brouhaha from their album "As Nasty As They Wanna Be." This band is a lawyer's dream. I just wonder if they have any royalties left over after paying their legal fees.

Another recent US Supreme Court case, Fogerty v. Fantasy, Inc., has implications for all songwriters and their attorneys.

John Fogerty was the lead singer and songwriter for the late 60's supergroup Creedence Clearwater Revival. CCR recorded on Fantasy Records, which, until that time, was mostly known for its jazz catalog. Like many acts, Fogerty signed a publishing agreement with the record company's affiliated publishing company, Fantasy, Inc.

In 1970, Fogerty wrote "Run Through the Jungle," which wound up being a big hit for CCR. The publishing went to Fantasy. (I'm simplifying the chain of title a little. The publishing went to a third party, who later assigned the publishing to Fantasy.) CCR disbanded in 1972. The publishing and recording deals with Fantasy ended, but Fantasy retained the copyrights to the existing material.

Fogerty had a few minor solo hits in the early 70's and then faded from view, until making a comeback in 1985 with a song entitled "The Old Man Down the Road." Fogerty had a new record label, Warner Brothers, and a new publisher. Critics and fans alike praised Fogerty's return to form. It sounded like the old swamp rock sound of CCR.

Maybe a little too much. Fantasy, the owner of "Run Through the Jungle" sued Fogerty and Warner Brothers, alleging that his new song infringed on the copyright of his old song.

Fogerty won. The copyright infringement suit was defeated. But Fogerty was out a lot of attorney's fees. As in most publishing and recording contracts, Fogerty, the songwriter/performer, warranted that the songs he was delivering were his own, not infringements on anyone else's copyrights, and he agreed to indemnify (or reimburse) Warner Brothers for any costs associated with defending against any claims to the contrary. Since Fogerty won the case, shouldn't Fantasy have to pick up the tab for the attorney's fees?

The general rule in England is that the losing party has to pay for the winning party's attorney's fees. It doesn't matter if the losing party is a plaintiff or defendant. It is almost automatic Supporters of the "British Rule" argue that it discourages frivolous or bad faith lawsuits.

The United States has never adopted the British Rule. In our country, each party has to pay its own legal costs, unless there is a statute or rule to the contrary. The trend is towards more and more statutes and rules allowing the prevailing party to recover its attorneys fees from the loser, but it is still considered the exception to the rule. The argument for the U.S. approach is that we don't want to discourage or scare away good faith claims.

One advantage of registering your copyright is that, if your copyright is registered, Section 505 of the Copyright Act provides that in any copyright infringement action "the court may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." Some lower federal courts, like the court sitting in California which first heard the case, read Section 505 to mean that winning plaintiffs in a copyright infringement case would almost automatically be awarded reasonable attorneys fees from the losing defendant, but that a winning defendant could only recover attorney's fees from a losing plaintiff if the court believed the suit was frivolous or brought in bad faith. Some other federal courts rejected this so-called "dual approach" and read Section 505 to mean that a court could award attorney's fees to any winning party, regardless of whether the case was brought in bad faith. When some courts interpret the law one way while other courts interpret it another way, lawyers call it a "split of authority."

When Fogerty defeated the copyright infringement suit, he asked the trial court to make Fantasy pay his attorney's fees. The trial court, reasoning that the suit was not brought in bad faith, refused. Fogerty appealed, arguing that the U.S. should adopt the British Rule and award attorney's fees automatically to the winning party, plaintiff or defendant. The Supreme Court declined to adopt the British Rule, but did say the lower courts were wrong to treat plaintiffs and defendants differently. Under Section 505, the Court wrote, the trial court may, at its own discretion, award attorney's fees to the winning party, but that it should treat plaintiffs and defendants the same. There is no requirement that attorney's fees be awarded to the winning party, but courts should not allow winning plaintiffs to receive their attorney's fees almost automatically while requiring winning defendants to show that the suit was brought in bad faith. The Court dubbed it's new standard the "even-handed" approach.

There's a lot of mistrust between publishers and songwriters. Publishers routinely return unsolicited tapes from aspiring songwriters for fear of later being hit with a copyright infringement claim if that songwriter thinks that some new song on the radio sounds like the one he submitted a year ago. At the same time, it's not beyond the realm of possibility that a big name act may consciously or even subconsciously lift an idea or two from the stacks of tapes he or she may listen to in a week. Federal copyright suits are expensive and time consuming, whether they're brought in good faith or merely for harassment. Hopefully the new ruling form the high court will discourage bad faith plaintiffs and defendants without frightening off the claims that really do have a valid basis.