The Second Act - The Perils of Parody

Not everyone knows this about me, but I have a playful streak. Some might even call me mischievous. Generally this goes pretty much unnoticed. Recently I started playing with music but backed off when I learned it might end me up in prison. Mischievous, indeed!

Okay, my misdeed (or in this case, I suppose I should call it my infringement) resulted from my mischievous tendency to mess with song lyrics. Well, maybe I should come clean and call it my tendency to completely rewrite song lyrics.

So how did I get into trouble? Say I want to perform a song. I buy a copy of the music and this gives me a license to sing it. To myself. If I want to perform it, that is to sing it for others to hear, I have to buy a performance license (or sing it in a bar that has purchased blanket performance rights). That’s all pretty straightforward. I can even buy rights, for a relatively nominal fee, to make and sell recordings of the song. It’s just money.

But, say I want to change the lyrics. Then it gets sticky. Because changing the lyrics makes it a “derivative work.” To make a derivative work I need permission from the owner of the original copyright. Who in all likelihood, is someone other than the publisher or the distributor who sold me the music. And to be realistic, what’s the chance that Sir Elton John is going to give me permission to screw with his song?

Okay, I haven’t infringed on any of Elton’s songs. But let’s consider the rules here. Copyright is the law. Write a song and you own it for a really long time. And you don’t have to let anybody mess with it. Unless they’re parodying it. Then there’s a loophole.

Most of my alternate lyrics are funny. Lyrics can be funny because they parody the original song or artist, because they offer a satirical commentary on someone other than the artist, or because they’re just funny. Funny and satirical don’t cut it. The defense is a form of Fair Use. Fair Use means sort of what it sounds like, but you have to understand that almost the entire legal profession exists to define the word “fair.” Parody refers to a work that subjects the song, the artist, or the original work’s copyright owner to ridicule. It is considered fair use because the lawmakers figured a parodist would have difficulty exercising the right to free speech if he or she had to ask permission of everyone he wanted to ridicule. So it’s granted automatically. But when it’s just funny or satirical, well it’s assumed that asking permission might be reasonable.

Let’s consider a couple of possible transgressions. I say possible because I’ve never connected the lyrics to the music in a public venue (other than for educational reasons, as I do here). I have a stage musical in my head, Westside Story, a parody of the still popular musical by a similar name, but about two rival geriatric gangs residing in the Westside Assisted Living Facility. Say I have a character named Tony, an aging member of the Vets gang. I give him a song with lyrics like these set to the tune of Maria:

Magnesia, I can’t find the Milk of Magnesia.

And suddenly I’ve found, the bottle on the ground, empty.

That’s parody. I’m making fun of the original song. Instead of longing for a beautiful woman, Tony now lusts for an elixir to stimulate his bowels. It’s funny and it’s funny because it pokes fun at the original song.

But consider a member of the rival gang, the Sharks. A cranky old geezer named Don who they call Donald the Grump. His song, to the tune of Tonight, goes like this:

I’m right, I’m right, I’m almost always right.

I can’t recall I’ve ever been wrong.

Yes, it’s funny. But it’s funny because it lampoons a politician with a like-sounding name and demeanor. That’s satire. And satire isn’t protected.

It gets really complicated and I think you have to be a copyright attorney to write parody. If there’s an upside here, it’s that the copyright statutes are civil, not criminal. This means I won’t go to jail for writing my musical. And the statutory damages top out at about $150,000 per infringement.

I feel so much better.

David Vale is not a lawyer. His legal experience comes from watching television and hiring lawyers when he gets in trouble. He frequently sings his parodies. In the shower.