Parodies… Gangnam Style!

It’s fun to look at publications and see their commentaries on legal issues, particularly when they involve pop cultural phenomena.  Often times they completely miss the mark.  Other times they hit the nail on the head.  Last week, Forbes.com published a funny article on parody videos of the strange yet fascinating appearance of Gangnam Style by Korean pop signer Psy, and got the legal issues right.  For those who have no idea what I am talking about, here’s the video.

I can’t explain it either, but as a slightly overweight, Asian, 30-something male, I appreciate that I am finally cool with the hipsters.   The Forbes article goes into detail on the legal definition of parody, which allows individuals to essentially “get away with” making a “Gangnam Style” video, without getting in trouble.  From Forbes.com

Creating a new work based on someone else’s prior work (called a “derivative work”) is another example of an infringement that copyright law protects against. Many songwriters have been sued for “sampling” other writers’ music (incorporating parts of other writers’ songs into their works). Contrary to a widely circulated rule of thumb, even using as few as four notes from another song can be an infringement.

So how is it that the hundreds of Gangnam Style remake creators have not gotten into trouble?

Many of these remakes may qualify as parodies, which are generally protected under the copyright law’s “fair use” doctrine….

Thanks to another rapper two decades ago, parodies are generally considered to be a form of fair use. In 1989, rap group 2 Live Crew recorded the song “Pretty Woman,” a parody of singer Roy Orbison’s earlier rock ballad “Oh, Pretty Woman.” The publisher of Orbison’s song sued for infringement and took the case up to the U.S. Supreme Court.

As Justice David Souter described it in the Supreme Court case Campbell v. Acuff-Rose Music, Inc., 2 Live Crew’s version juxtaposed “the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility,” serving as a commentary “on the naivete of the original of an earlier day.” After carefully analyzing each factor in the four-factor fair use test, the Court decided that 2 Live Crew’s parody of Orbison’s song was fair use. Key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.

It is important to note that when it comes to music videos, the video portion and the music portion have separate copyright issues, so if a video is to be truly considered a parody, they need to parody both.  Here are some popular videos to show the difference.

PARODY

NOT PARODY

So as you can see, not only do the “not parody” videos fall outside of “fair use”, they are also are not nearly as funny.  I greatly respect the future officers of the United States Navy, but does that video do anything to dispel the 200+ year old stereotype of American seagoing servicemen?  Oh, by they way, did Vanilla Ice really think that revisiting “Go Ninja Go”, the “sell out” which killed his career, would somehow boost his public image?  Fortunately for them, Psy doesn’t seem interested in litigating copyright issues on parody attempts.