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The Lady Gaga / Weird Al Debacle and Fair Use Laws

By (view all posts by Allegra.Ringo)
at 9:58AM Friday April 22, 2011
under Newsworthy

On Wednesday morning, fans of Weird Al Yankovic were outraged to learn that Lady Gaga would not approve Yankovic's parody of her song "Born This Way."  After several hours of fan rage, it came out that Gaga's manager was the one who wouldn't sign off on the parody--he hadn't actually passed the song onto her. (At least, this is what she claims.)  Gaga has since heard and approved the song, to the delight of the Internet.
What would have happened if Gaga really hadn't given Yankovic permission to parody her song? Yankovic has a "personal policy" against releasing parodies without the artist's blessing, so it wouldn't have been released for profit. Legally, though, he could have released it under fair use laws.

Fair use laws permit "limited use of copyrighted material without acquiring permission from the rights holders." That means that under certain conditions, a person may use another artist's work for their own purposes, without having to obtain that artist's approval. So what conditions qualify?

That's where things get murky. The Copyright Act of 1976 states that fair use applies to "purposes such as criticism, comment, news reporting, teaching, scholarship, or research." There are four main provisions that courts take into account when determining a fair use case: the purpose and nature of the work (including whether it's for commercial or nonprofit educational purposes), the nature of the original (copyrighted) work, the amount of the work used in relation to the work as a whole, and the effect on the potential market or value of the original work.

By these standards, there are numerous uses that pretty obviously qualify as "fair," such as professors distributing copies of an article to students. However, there are also many gray areas have come into question over the years. Parody and satire are two issues that continue to arise.

In Leibovitz v. Paramount Pictures, photographer Annie Leibovitz sued Paramount for copyright infringement, for their use of a photograph that parodied her famous photo of a pregnant Demi Moore. The court found that Paramount's photo constituted a fair use. An important factor in their decision was that certain "artistic choices on the part of Paramount's designers"--for instance, exaggerated jewelry and facial expression--clearly defined the photo as parody.

In 1996, Penguin Books published a "poetic account of the O.J. Simpson double murder trial" entitled The Cat NOT in the Hat!: A Parody by Dr. Juice. In Dr. Seuss Enterprises v. Penguin Books USA, Dr. Seuss Enterprises sued Penguin for copyright infringement. I'm sure if there was a legal precedent, someone would have also sued them for using the worst title in history. At any rate, the court ruled that the book did not constitute a fair use. Because it did not use a form similar to that of The Cat in the Hat, the court decided that it could not be labeled a parody and thus was a case of copyright infringement.

Other fair uses cases have been even more ambiguous with rulings that vary. For instance, although the line between parody and satire is ill-defined, courts have historically been more willing to rule that parody, rather than satire, falls under fair use laws. If you'd like to read more, here's an interesting list of fair use cases, and important factors that went into them.

What do you think of the Lady Gaga/ Al Yankovic saga? Do you agree with Yankovic's policy of obtaining the artist's permission before parodying a song?