[jamesmcn]

Devil's advocate: where do you draw the line?

MIT did a Gangnam style video, did they pay Psy for the right to do so?

If BMW were to do a Gangnam style video, surely Psy would expect to be paid, right?

Why BMW and why not MIT?

We are in a liminal period where copyright is sometimes enforced, and sometimes not. Social pressure and business inertia causes some people to play by the rules. Risk taking, greed, and ignorance causes other people to not do so. Where this ends up is anyone's guess, but it isn't likely to stay this way for long.

[That said, I'll reiterate my previous comment about record labels who bring hundred-million-dollar suits against their fans: fuck them.]

[shin_lao]

Parody is considered to be "fair use". Commercials aren't.

http://en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody

Actually copyright laws were pretty clear, we just had massive regression due to intense lobbying of greedy entities.

[Jach]

Parody commercials (and indeed t.v. shows) are just fine, however. http://en.wikipedia.org/wiki/Saturday_night_live

[saurik]

A) If you accept this argument premise, then you violate the assumption that PSY is "ignoring copyright infringement" in the first place. B) Using the music verbatim but changing only the video content to make a parody would probably not hold up as "fair use".

[shin_lao]

A/Exactly. There wasn't probably a copyright infringement in the first place.

The whole article is a non sequitur anyway. Psy won the Internet fame lottery, you cannot extrapolate anything about copyrights.

[PerryCox]

>Using the music verbatim but changing only the video content to make a parody would probably not hold up as "fair use".

Weird Al rerecords the music, but the notes are the same and that is considered fair use. I know that Weird Al ask for permission from artist before releasing any songs, but it's not something he is required to do.

[xsmasher]

Weird Al "using the same notes" is not fair use. He pays the compulsory license.

Using the music verbatim would not likely be fair use, and the videomaker owes a license fee.

[danielweber]

2 Live Crew won their case when they did a raunchy cover of Roy Orbison's "(O) Pretty Woman." I don't think they had to pay licensing fees, nor does Yankovic.

EDIT: I asked about licensing fees, and Wiki[1] says that Coolio accepted royalty payments for "Amish Paradise." So I still wonder how 2 Live Crew settled their suit, and I need to get back to work.

[1] https://en.wikipedia.org/wiki/Weird_al#Negative

[xsmasher]

2 live crew sampled the Orbison recording. There is no compulsory license for recorded music. It's a different situation than "using the same notes."

[saurik]

Recording your own performance from the same sheet music and "using the music verbatim" (in which context I meant using the "audio" verbatim, while changing only the "video") are fundamentally different situations.

[Natsu]

Both halves are copyrighted, though. Musical works have copyrights that are independent of the copyrights on any particular recording thereof.

Ref: http://www.masurlaw.com/3980/songs-and-records-two-types-of-...

[saurik]

Right; however, with a parody of the sheet music that you recorded yourself you have fair use on the sheet music and no concerns about the recording. If you want to do a parody of the recording from the substantively the same sheet music, you may or may not be able to get by with nothing, but you would almost certainly be ok with a mechanical license, which the studio is required to give you for a known (small) fee.

In comparison, if you want to do a parody of a music video--a work that is considered to be on top of the music piece, as opposed to included with it, and thereby requiring a special "synchronization license" to make--using the original recording (which obviously implies the original sheet music), you are then going to have to negotiate with the studio, and they may simply not have any internal mechanism by which you can license it at all (even if individuals there think it makes sense).

[bjourne]

For the record (hah) "Fair use" is only a legal concept in the US. Other jurisdictions sometimes have analogies to Fair use, like the right for journalists to quote parts of a text. But those rights are much more limited. There is also no DMCA which means site owners are responsible for the content users may publish.

[tmh88j]

>Parody is considered to be "fair use". Commercials aren't.

How about when parodies generate money? Weird Al made millions doing that.

[dschep]

Regardless of fair use, Weird Al gets permission: https://en.wikipedia.org/wiki/Weird_al#Reactions_from_origin...

[tmh88j]

He didn't get permission from Coolio

>I ain't with that…I think that my song was too serious…I really…don't appreciate him desecrating the song like that… his record company asked for my permission, and I said no. But they did it anyway…

http://splitsider.com/2011/12/gangstas-parodist-revisiting-w...

[bjourne]

Possibly because Gansta Paradise already is a poor version of Stevie Wonder's Pasttime Paradise? Musicians borrow from each other, always have always will.

[illuminate]

"He didn't get permission from Coolio"

He received permission from Coolio's record company.

[imgabe]

Did Weird Al pay royalties to the songwriters for covering their songs? By law (in the US at least) you're allowed to cover any song as long as you pay the statutory royalties (or a lesser amount if you can negotiate that)

[Shivetya]

Many of the parodies I see on the net keep the original song or lyrics. Weird Al keeps most of the original musical sound but not the lyrics.

So how do you parody a music video without changing the song? Does fair use of the music video via parody give you right to use the music behind it intact? (color me confused)

[1123581321]

You can make money from a parody and make any parody you want. However, in the case of a music video, the video and the song are separate entities, so to avoid the license question the parody would have to change the music as well. I'm not sure where the line is, but for example, the "Opan Chomsky Style" line in the MIT video would certainly not be enough to make the song a parody. "Mitt Romney Style" would certainly be considered a fair use parody and since the video was also parody, the need to license was avoided.

It would be interesting to know at which point a video soundtrack becomes separately copyrighted video. Does the process and order of creation matter or is a song a separate work by definition? Is it possible to merge video and music rights into one right?

[pflats]

>"Mitt Romney Style" would certainly be considered a fair use parody and since the video was also parody, the need to license was avoided.

This is far from a certainty. In fact, the court could very well rule against College Humor et. al. if Psy and his folks chose to press the issue.

The major issue here is the legal difference between parody vs. satire. In parody, you're using Psy's own work to criticize Psy. In satire, you're using Psy's work to mock someone unrelated (i.e. Gov. Romney).

Excerpting from page 2 of http://apps.americanbar.org/litigation/committees/intellectu..., emphasis mine.

"[i]f the new work “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention” [...] the work is less tansformative, and other fair use factors [...], loom larger. [...] [A] parody targets and mimics the original work to make its point, [while] a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing."

But like everything in the legal system, it's in shades of grey.

"A parody that more loosely targets an original [...] may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody [...] runs the risk of serving as a substitute for the original or licensed derivatives [...] it is more incumbent on one claiming fair use to establish the extent of transformation."

I think there's a strong argument that an English-languge parody on a stremaing video site that gets money for its adroll could be a replacement for the Korean-language (or theoretical officially-licensed English-language) song on a streaming video site that gets money for its adroll.

I, of course, am not a lawer. If I was in the business of using copyrighted works in what is legally defined as satire, I'd be playing it very carefully. Psy has (seemingly) no interest in suing these people, and is probably a safe bet. I'd be a lot more careful about using a Ted Nugent song to support single-payer healthcare.

In the end, the American Bar document (http://apps.americanbar.org/litigation/committees/intellectu...) is a really interesting read if you do care about what could qualify as fair use and what might not.

edit: in fact, what the heck, I'll submit it as a story. (http://news.ycombinator.com/item?id=4905613)

[1123581321]

You're completely right; I remember now a few other cases in which the rights holder prevailed because they were not the target of the parody.

[deelowe]

Why would that make a difference? Laws don't typically include an "unless you make money from it" clause.

[danielweber]

Your infringement being of a commercial nature is one of the four tests of Fair Use.

[primatology]

BMW is a for-profit business. MIT is a non-profit educational institution.

I'll agree that copyright in the digital era is a mess, but the line in this case is fairly clear. Yes, fair use (regarding parodies/satires) is convoluted, but the general rule makes intuitive sense to me: unless your parody is blatantly for-profit/self-advancement, you're covered.

[jamesmcn]

So, what if BMW kicked the BMWCCA a few bills to make a "parody" video of their own?

[rmc]

It's up to judges to decide if they have broken the law and if it's an actual commercial.

You can't just claim an advert is a parody and get away with it, it has to be an actual parody.

[gadders]

A non-profit with $15b in total assets and endowments.

http://web.mit.edu/newsoffice/2012/institute-endowment-figur...

[chris_wot]

And yet still a non-profit in actuality and intent.

[gadders]

Very true. But if a non-profit with $15b asked to license some of my IP for free I think I'd ask for some cash.

[gonehome]

"We are in a liminal period where copyright is sometimes enforced, and sometimes not. Social pressure and business inertia causes some people to play by the rules. Risk taking, greed, and ignorance causes other people to not do so. Where this ends up is anyone's guess, but it isn't likely to stay this way for long."

It's more nuanced than that - modern copyright is not doing what it was supposed to do (http://zacharyalberico.com/post/16427595132/no-infringement-...).

[MichaelSalib]

MIT didn't make a Gangnam style video at all. The Korean Students Association at MIT did and got a bunch of random students to help out. The KSA doesn't have any money; BMW does.

[danielweber]

MIT pays a flat ASCAP license fee that covers all its students which probably provides them substantial legal cover for most use.

[vy8vWJlco]

"Devil's advocate: where do you draw the line?"

Individual and not-for-profit uses are fair.

http://torrentfreak.com/file-sharing-for-personal-use-declar...