In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court distinguished between “parody” and “satire” as follows:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v.Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody 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.
(Footnotes omitted.) So: a parody comments on the work itself; a satire uses the work to comment on something else. The ruling in last year’s Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley’s songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore’s argument that the use of Henley’s songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn’t exactly say, “If it’s a parody, it’s fair use; if it’s a satire, it isn’t.” But that’s how such cases usually play out.)
Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? and David Post explains why the answer must be yes. Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:
Nice bokeh. Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service.” Raising the odd but critical question: who assigned the copyright to the News Service? Slater? Maybe, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.
That leaves the monkey.
The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions about the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). Post’s friend and colleague Annemarie Bridy recently completed a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).
Musicians! Check out this survey from the Future of Music Coalition. The study tracks artist revenue streams in the post-Napster era, and captures the ways in which US musicians generate income from songs, recordings, or performances.
Obviously, this is not your grandpa’s music industry. The past ten years transformed the ways in which music created and distributed. The advent of streaming services and webcasting stations eliminated the cost barriers to the distribution and sale of music, and loads of new platforms and technologies — from Bandcamp to blogs to Twitter feeds — now help musicians connect with fans.
The press is quick to categorize these structural changes as positive improvements for musicians, particularly when compared with the music industry of the past — remember FM radio? While it’s true that these changes improved musicians’ access to the marketplace, they have not necessarily improved musicians ability to generate revenue from their work. Almost all analyses of the effects of these changes rest purely on assumptions that they have improved musicians’ bottom lines, or on top-level assessments of the music industry writ large, based on traditional metrics: number of albums sold, number of spins on radio, even stock price valuations.
The results provide some insight into complex nature of being a musician in the 21st century, particularly the financial realities of copyrights, licensing, and royalties.
A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), finds that the parody Elf off the Shelf likely does not infringe the copyright or trademark in plaintiff’s Elf on the Shelf.