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I have seen this claim more than once in this forum, and it doesn't sound right to me, so I am asking directly... Basically the claim is that if Weird Al Yankovich were sued over one of his parody songs, he wouldn't be able to use a fair use defense, because his songs mostly do not parody the original work.

The example given is his song Yoda, which is set to the tune of Lola by The Kinks. Yoda is about Star Wars, and doesn't even mention The Kinks, or Lola in the lyrics; so if parody is pointed criticism in joke form, then Yoda is not a parody of Lola, despite what tune it uses.

If Weird Al was sued by (Kinks songwriter) Ray Davies, it would be a simple intellectual property case over the tune; Weird Al only be able to use a fair use parody defense if he was sued by (Star Wars rights holder) Disney.

But wouldn't this require the courts to parse the content of a joke, to determine who/what the butt of the joke was?

The claim was made under a question about Acuff-Rose v Campbell, the famous 2 Live Crew case, inwhich a hip hop group released a song called Pretty Woman, which used the guitar riff and some of the lyrics from Roy Orbison's Oh, Pretty Woman. They were sued by the song's rights holder, but won, establishing that parody is grounds for fair use. In that case, even though Pretty Woman was clearly humorous in intent, the court did not comment on the humor, going so far as to use a definition of parody that, counterintuitively, did not mention humor. The court was clearly reluctant to comment on humor, probably because humor is subjective, and old white men were not the target of Pretty Woman's humor.

If we're splitting hairs between an original work that a parody is derived from, and the subject of the joke, you could similarly argue that Pretty Woman does not qualify as a parody of Oh, Pretty Woman, since the lyrics do not mention Roy Orbison or any of his songs. If that argument was made in court during the Acuff-Rose case, the plaintiff would've argued that referencing such a cleancut song and making it vulgar (as they did) was inherently parodic.

Weird Al famously always seeks the original artist's blessing for his parodies, so this scenario will probably never be tested, and any answer directly relating to Weird Al would be speculative. But is there any case law that supports this claim? Because the most famous and influential fair use parody claim would seem to directly contradict it. Acuff-Rose would seem to imply that the content/subject of a joke is immaterial to a fair use parody claim.

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  • I think it's worth pointing out that Weird Al does not just "get permission" to use other people's work for free. He gets their consent to be collaborators included as the song writer of the music he then adds new words to. Ray Davies receives royalties as the writer of the musical portion of "Yoda." Commented yesterday
  • (The relevance being the 2 Live Crew song copied portions of the original composition but is clearly transformative, whereas Weird Al songs are mostly direct reproductions of the original studio recording.) Commented yesterday
  • Note that on one of Weird Al's most contentious released tracks - Amish Paradise - Coolio (as Artis Ivey, Jr) has a songwriting credit. There are several famous unreleased tracks where Al wasn't able to get permission from either artist (Michael Jackson, Paul McCartney) or publisher (Atlantic Records for the parody of James Blunt's "You're Beautiful.") Commented 19 hours ago

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Satire is not parody

Fair use allows uses of copyrighted works “for purposes such as criticism [or] comment” (s 107).

A parody criticises or comments on the original work by imitating the style of the creator by exaggerating elements or changing words or images to highlight some part of the original work. That is, a parody is fundamentally about the original work.

Satire (by the Supreme Court’s definition) is commentary on something other than the original work. According to the court in Campbell v. Acuff-Rose Music, Inc.:

“[p]arody 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.”

Yoda is a satire of Lola because the lyrics could be set to any other tune or used as a beat poem without melody, and it still works. It is a parody of The Empire Strikes Back because it comments on its plot and characters, and it doesn't work without them.

Pretty Woman is a parody of Oh, Pretty Woman because it deliberately mocks the style, especially the repetitiveness, of the original, and it doesn't work without that.

Now, establishing that your work is a parody means it is a comment or criticism, and that is one of the factors in determining fair use, but it isn't definitive. Similarly, being a satire does not mean that it isn't fair use, but that would depend on what other elements of fair use were present.

There is no requirement for parody or satire to be funny.

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  • ...huh, fascinating! I swear, every time I look into fair use, it gets weedier and more interesting. I never would've considered this distinction. ...and it's right there in the case I thought I knew... huh! Commented 2 days ago
  • The law underlying your answer is spot on, but I think the analysis veers off base. You're applying the test far more mechanically than American courts would endorse Commented 2 days ago
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I think you are misunderstanding what a parody is in music, which is about the style rather than the specific lyrics. If you look through the works of Weird Al Yankovic, you will note that they use the same music and that the lyrics are written in the same style as the originals, even if they don't reference them.

Parody music

Parody music, or musical parody, involves changing or copying existing (usually well known) musical ideas, and/or lyrics, or copying the particular style of a composer or performer, or even a general style of music.

In music, parody has been used for many different purposes and in various musical contexts: as a serious compositional technique, as an unsophisticated re-use of well-known melody to present new words, and as an intentionally humorous, even mocking, reworking of existing musical material, sometimes for satirical effect.

Examples of musical parody with completely serious intent include parody masses in the 16th century, and, in the 20th century, the use of folk tunes in popular song, and neo-classical works written for the concert hall, drawing on earlier styles. "Parody" in this serious sense continues to be a term in musicological use, existing alongside the more common use of the term to refer to parody for humorous effect.

Parody in popular music

The original use of the term "parody" in music referred to re-use for wholly serious purposes of existing music. In popular music that sense of "parody" is still applicable to the use of folk music in the serious songs of such writers as Bob Dylan, but in general, "parody" in popular music refers to the humorous distortion of musical ideas or lyrics or general style of music.

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed. Commented yesterday

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