5 ms·

Isn't parodies are explicitly excluded from requiring to hold copyright to an object of a parody?

by ex3ndr 6y ago

acomjean 6y ago
Its a little tricky.. Even Weird Al gets the original artist's permission. "(Technically, a parodist does not need permission, but it is a legal gray area, and Weird Al prefers to have every artist in on the joke.)" https://www.nytimes.com/2020/04/09/magazine/weird-al-yankovic.html https://www.nytimes.com/2020/04/09/magazine/weird-al-yankovi... edit: the tricky pit is defining parody.
- jshevek 6y ago
  >Its a little tricky.. Even Weird Al gets the original artist's permission. Weird Al's preferences don't add any strength [evidence] to any argument regarding the legality.
  - not2b 6y ago
    Weird Al is trying to save himself trouble, because going to court can be expensive even when you win. He can legally do parodies without consent, but since so many people are happy to give him permission, that's the easier route for him.
    - minimaxir 6y ago
      See also: https://en.wikipedia.org/wiki/You%27re_Pitiful https://en.wikipedia.org/wiki/You%27re_Pitiful > While Blunt himself had no issues with Yankovic recording the parody, Blunt's record label Atlantic did; they forbade Yankovic from commercially releasing the song at the last minute. Yankovic eventually released the song online as a veritable free single; furthermore, in music videos and during live performances, Yankovic has made reference to his dispute with Atlantic. Since the initial debacle in 2006, Yankovic has occasionally reached out to Blunt and his label to see if he can release the song on compilations. However, each time that he has approached Atlantic Records, he has been denied permission.
      - catalogia 6y ago
        If Blunt had said no and his publisher said yes, Yankovic wouldn't have released a song even for free. So it seems Yankovic considers asking for permission to be both a matter of courtesy and liability, with more apparent emphasis on courtesy.
    - dtech 6y ago
      Most of Weird Al's songs aren't parodies in the legal sense. "Party in the CIA" is just "Party in the USA" with different Lyrics, it's not protected, just like most covers aren't. "Smells like Nirvana" is, because it directly references and parodies how the singer in the song is barely understandable.
      - Talanes 6y ago
        Where would White and Nerdy place? It's not a direct comment on the original artist, but it is intentionally playing with a reversal of the stereotypes associated with the original piece.
        markmark 6y ago
        Only a court can decide that. Parody is a defence in a copyright infringement case when it comes down to it, which is why Weird Al just gets permission instead. There's a lot of uncertainty on the edges. It's interesting to read about the trouble Penny Arcade had https://whatever.scalzi.com/2003/04/25/strawberry-shortcake-and-penny-arcade/ https://whatever.scalzi.com/2003/04/25/strawberry-shortcake-...
    - deleted 6y ago
      [deleted]
hobs 6y ago
Fair use is decided on a case by case basis if the owner wants to take it to court, and each time you get a new bite at the apple!
xoa 6y ago
Yes but with complexities in general, and a collision with non-copyright issues for deep fakes that starts to get into more unexplored societal/legal territory. First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. In practice, that can mean a somewhat higher financial risk and higher chance of losing at the edges. Second though, parody (and Fair Use) is about copyright and trademark, protecting use of such material for commentary and so on. But use of someone's likeness directly, particularly for someone famous, in order to produce new works is arguably something new that hasn't really been dealt with yet. Jay-Z making a copyright claim definitely seems dubious, and perhaps was done simply for convenience rather then legal strength, copyright disputes are the form in which most take down systems work. I can see arguments both ways for whether copyright would apply at all: in favor, the argument would be that the ML models are being trained via copyrighted works, which in turn makes them derivatives. On the other hand, facts are not copyrightable (in the USA) regardless of effort or source. A counter argument would be that the ML models are merely deriving facts about a person's vocal cord, facial structures and other physical natural characteristics, which then create a factual physical model which can be utilized to produce new works. In that case, all these new deep fakes would be their own brand new copyright (and potentially the ML models themselves not copyrightable). That'd be an interesting legal argument to see hashed out. But even if they're new copyrights, right to voice & likeness are issues in some jurisdictions and certainly could be argued should be more so as technology makes this easier. I think factors around threat to reputation and so on also are raised in new ways with deep fakes vs remixing and adding commentary to real, existing works (which can in turn be referenced by anyone who sees the parody). Even if there is a disclaimer on the original deep fake, as a de novo work which itself might get spread around without context it's at least different then what we've had until now.
- gnopgnip 6y ago
  >First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. This is a misnomer. Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152
sbarre 6y ago
In theory, sure.. But remember that on YouTube, the vast majority of uploaders are not customers, they're the product. Google is a business and therefore the calculations that go into deciding who to side with in these kinds of disputes doesn't _only_ factor in the law, but also the impact on the business. In this case, they predictably sided with a fellow corporate entity, like they almost always do. There is no business reason for them to go to bat for a small non-commercial uploader, they're better off just removing the video when a deep-pocketed company complains about it.
anonymfus 6y ago
Yes but an imitation is not necessary and usually a parody. There is a good Tom Scott's video about this distinction and other common misconceptions about copyright: https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU (42 interesting minutes)
aaronax 6y ago
I don't remember the specific arguments that he laid out, but after watching this (42 minute, worthwhile) video by Tom Scott about copyright my understanding changed. Now I assume that most things don't fit some narrow requirements regarding what parodies are allowed and what aren't. https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU
- elliekelly 6y ago
  I can’t help but laugh that the opening story about music rights could have been avoided if the original Pied Piper search existed.
roywiggins 6y ago
Are you sure that it's actually parodying Jay-Z? Is it making fun of Jay-Z? Andeepfaked audiobook of a famous person reading a Brothers Grimm children's story is not obviously parody, and Jay-Z has a very well-known voice, and well known voices sell audiobooks nowadays. Just because you give it out for free doesn't make it fair use, either. Second- no, parody is not explicitly excluded. It's one of several factors used to determine "fair use". Just because something is a parody doesn't mean it's automatically fair use, and the only way to get an explicit determination is to fight it in court.

Isn't parodies are explicitly excluded from requiring to hold copyright to an object of a parody?

by ex3ndr 6y ago

Isn't parodies are explicitly excluded from requiring to hold copyright to an object of a parody?

Its a little tricky.. Even Weird Al gets the original artist's permission. "(Technically, a parodist does not need permission, but it is a legal gray area, and Weird Al prefers to have every artist in on the joke.)" https://www.nytimes.com/2020/04/09/magazine/weird-al-yankovic.html https://www.nytimes.com/2020/04/09/magazine/weird-al-yankovi... edit: the tricky pit is defining parody.

jshevek 6y ago
>Its a little tricky.. Even Weird Al gets the original artist's permission. Weird Al's preferences don't add any strength [evidence] to any argument regarding the legality.
- not2b 6y ago
  Weird Al is trying to save himself trouble, because going to court can be expensive even when you win. He can legally do parodies without consent, but since so many people are happy to give him permission, that's the easier route for him.
  - minimaxir 6y ago
    See also: https://en.wikipedia.org/wiki/You%27re_Pitiful https://en.wikipedia.org/wiki/You%27re_Pitiful > While Blunt himself had no issues with Yankovic recording the parody, Blunt's record label Atlantic did; they forbade Yankovic from commercially releasing the song at the last minute. Yankovic eventually released the song online as a veritable free single; furthermore, in music videos and during live performances, Yankovic has made reference to his dispute with Atlantic. Since the initial debacle in 2006, Yankovic has occasionally reached out to Blunt and his label to see if he can release the song on compilations. However, each time that he has approached Atlantic Records, he has been denied permission.
    - catalogia 6y ago
      If Blunt had said no and his publisher said yes, Yankovic wouldn't have released a song even for free. So it seems Yankovic considers asking for permission to be both a matter of courtesy and liability, with more apparent emphasis on courtesy.
  - dtech 6y ago
    Most of Weird Al's songs aren't parodies in the legal sense. "Party in the CIA" is just "Party in the USA" with different Lyrics, it's not protected, just like most covers aren't. "Smells like Nirvana" is, because it directly references and parodies how the singer in the song is barely understandable.
    - Talanes 6y ago
      Where would White and Nerdy place? It's not a direct comment on the original artist, but it is intentionally playing with a reversal of the stereotypes associated with the original piece.
      - markmark 6y ago
        Only a court can decide that. Parody is a defence in a copyright infringement case when it comes down to it, which is why Weird Al just gets permission instead. There's a lot of uncertainty on the edges. It's interesting to read about the trouble Penny Arcade had https://whatever.scalzi.com/2003/04/25/strawberry-shortcake-and-penny-arcade/ https://whatever.scalzi.com/2003/04/25/strawberry-shortcake-...
  - deleted 6y ago
    [deleted]

hobs 6y ago

Fair use is decided on a case by case basis if the owner wants to take it to court, and each time you get a new bite at the apple!

xoa 6y ago

Yes but with complexities in general, and a collision with non-copyright issues for deep fakes that starts to get into more unexplored societal/legal territory. First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. In practice, that can mean a somewhat higher financial risk and higher chance of losing at the edges. Second though, parody (and Fair Use) is about copyright and trademark, protecting use of such material for commentary and so on. But use of someone's likeness directly, particularly for someone famous, in order to produce new works is arguably something new that hasn't really been dealt with yet. Jay-Z making a copyright claim definitely seems dubious, and perhaps was done simply for convenience rather then legal strength, copyright disputes are the form in which most take down systems work. I can see arguments both ways for whether copyright would apply at all: in favor, the argument would be that the ML models are being trained via copyrighted works, which in turn makes them derivatives. On the other hand, facts are not copyrightable (in the USA) regardless of effort or source. A counter argument would be that the ML models are merely deriving facts about a person's vocal cord, facial structures and other physical natural characteristics, which then create a factual physical model which can be utilized to produce new works. In that case, all these new deep fakes would be their own brand new copyright (and potentially the ML models themselves not copyrightable). That'd be an interesting legal argument to see hashed out. But even if they're new copyrights, right to voice & likeness are issues in some jurisdictions and certainly could be argued should be more so as technology makes this easier. I think factors around threat to reputation and so on also are raised in new ways with deep fakes vs remixing and adding commentary to real, existing works (which can in turn be referenced by anyone who sees the parody). Even if there is a disclaimer on the original deep fake, as a de novo work which itself might get spread around without context it's at least different then what we've had until now.

gnopgnip 6y ago
>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. This is a misnomer. Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152

sbarre 6y ago

In theory, sure.. But remember that on YouTube, the vast majority of uploaders are not customers, they're the product. Google is a business and therefore the calculations that go into deciding who to side with in these kinds of disputes doesn't _only_ factor in the law, but also the impact on the business. In this case, they predictably sided with a fellow corporate entity, like they almost always do. There is no business reason for them to go to bat for a small non-commercial uploader, they're better off just removing the video when a deep-pocketed company complains about it.

anonymfus 6y ago

Yes but an imitation is not necessary and usually a parody. There is a good Tom Scott's video about this distinction and other common misconceptions about copyright: https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU (42 interesting minutes)

aaronax 6y ago

I don't remember the specific arguments that he laid out, but after watching this (42 minute, worthwhile) video by Tom Scott about copyright my understanding changed. Now I assume that most things don't fit some narrow requirements regarding what parodies are allowed and what aren't. https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU

elliekelly 6y ago
I can’t help but laugh that the opening story about music rights could have been avoided if the original Pied Piper search existed.

roywiggins 6y ago

Are you sure that it's actually parodying Jay-Z? Is it making fun of Jay-Z? Andeepfaked audiobook of a famous person reading a Brothers Grimm children's story is not obviously parody, and Jay-Z has a very well-known voice, and well known voices sell audiobooks nowadays. Just because you give it out for free doesn't make it fair use, either. Second- no, parody is not explicitly excluded. It's one of several factors used to determine "fair use". Just because something is a parody doesn't mean it's automatically fair use, and the only way to get an explicit determination is to fight it in court.