Random Thoughts

[D-Dey65]

I was wondering what kind of elaborate thing I was going to do for my 4,000th post on this forum. Now I've got an idea.

This thing had better not blank out on me.

[DTComposer]

Seeking legal advice from Google AI, Esq.

Please note that the second quote is directly from Weird Al's website.

But, here's an actual, human IP lawyer talking about it:

Although Weird Al's re-recordings are near melodic copies of the original recordings, they do not violate the copyright owner's rights. Since "Weird Al's" songs meet the required aspects to define a parody, he is not required by law to get permission. He also does not need to pay the creator of the original song.

Often times, a court will apply the "likelihood of confusion" test to a parody case. Courts have noted that a successful parody will rarely be considered infringement because the ultimate object of a parody is to entertain and not confuse the listener or buyer. There is no perceived "threat of confusion" and it is unlikely that the original artist's profits will be negatively impacted by Weird Al's versions. Because of this, original recording artists are unlikely to have a cause of action against Mr. Yankovic.

[kphoger]

I went on incognito mode and found Mickey flipping the bird, urinating on things, having sex with other Disney characters, getting stoned, etc.

I was on incognito mode too.  What did you put in the search field, exactly?  For example, was it {mickey mouse sex} or just {mickey mouse}?  You seemed to imply that children might just happen to stumble upon Mickey Mouse doing inappropriate things when searching for his name.  If you did a search for something explicitly inappropriate, then why would anyone be surprised that you found inappropriate results?

Bill Watterson famously does not allow any merchandise for Calvin and Hobbes outside of the books - so the only Calvin and Hobbes merch you can get is Calvin urinating on something - totally allowed, because it's "fair use" - but do you think Watterson's happy about it?

1.  Based on what source do you claim that "Calvin peeing" is fair use?

2.  Bill Watterson famously doesn't care to pursue people who make knock-off Calvin & Hobbes merchandise.  It just hasn't been worth the time and effort to him to try and pursue them.  The is related to why he didn't go for commercialization himself in the first place:  he's an artist who doesn't want to get tangled up in the business side of things.  So, do I think he's happy about "Calvin peeing"?  Honestly, I don't think he cares all that much one way or the other.

Weird Al

I know he doesn't do parodies without permission, but ... I think a lot of it is that he personally chooses not to do parodies without permission.

Correct.  Most famously, he really wants to do parodies of the artist formerly and then once again known as Prince.  He wants to, he could legally do so, but he chooses not to because Prince told him no.

[DTComposer]

Bill Watterson famously does not allow any merchandise for Calvin and Hobbes outside of the books - so the only Calvin and Hobbes merch you can get is Calvin urinating on something - totally allowed, because it's "fair use" - but do you think Watterson's happy about it?

1.  Based on what source do you claim that "Calvin peeing" is fair use?

2.  Bill Watterson famously doesn't care to pursue people who make knock-off Calvin & Hobbes merchandise.  It just hasn't been worth the time and effort to him to try and pursue them.  The is related to why he didn't go for commercialization himself in the first place:  he's an artist who doesn't want to get tangled up in the business side of things.  So, do I think he's happy about "Calvin peeing"?  Honestly, I don't think he cares all that much one way or the other.

I admit that I mis-spoke (mis-typed?) here. As I read the articles further, the assertion was that, because he gave up trying to sue for copyright infringement (realizing the amount of time and money it would take to go after everyone), an argument could be made now that Calvin is basically public domain because the creator has declined to defend the copyright.

I clearly miscalculated how popular it would be to show Calvin urinating on a Ford logo.

I think he cares, based on his steadfast refusals to merchandise C&H in the first place. But as you said, he just doesn't want to engage in the business/legal battles.

[Molandfreak]

Weird Al

I know he doesn't do parodies without permission, but ... I think a lot of it is that he personally chooses not to do parodies without permission.

Correct.  Most famously, he really wants to do parodies of the artist formerly and then once again known as Prince.  He wants to, he could legally do so, but he chooses not to because Prince told him no.

There is a story that better explains what goes on behind the scenes with his song "Buckingham Blues." If you listen to it, you'll hear that it was originally written as a parody of John Mellencamp's "Jack and Diane," but it was rewritten to become a blues song. Mellencamp originally gave his blessing for a parody, and Yankovic later did parody the song for a cameo in The Simpsons. The reason why he couldn't parody it at the time was because the recording studio was planning to make a movie based on the song at the time, so while he did receive permission from Mellencamp, he did not receive permission from the studio behind the original song.

[TheCatalyst31]

Weird Al

I know he doesn't do parodies without permission, but ... I think a lot of it is that he personally chooses not to do parodies without permission.

Correct.  Most famously, he really wants to do parodies of the artist formerly and then once again known as Prince.  He wants to, he could legally do so, but he chooses not to because Prince told him no.

There is a story that better explains what goes on behind the scenes with his song "Buckingham Blues." If you listen to it, you'll hear that it was originally written as a parody of John Mellencamp's "Jack and Diane," but it was rewritten to become a blues song. Mellencamp originally gave his blessing for a parody, and Yankovic later did parody the song for a cameo in The Simpsons. The reason why he couldn't parody it at the time was because the recording studio was planning to make a movie based on the song at the time, so while he did receive permission from Mellencamp, he did not receive permission from the studio behind the original song.

This happened again in 2006 with "You're Pitiful", his parody of James Blunt's "You're Beautiful". Apparently Blunt gave him permission, but Atlantic Records refused, so he released the song online for free instead (and vandalized the Atlantic Records Wikipedia page in the "White and Nerdy" video).

On the other hand, Lady Gaga's management team denied him permission to parody "Born This Way", so he released "Perform This Way" online for free too. Except nobody had talked to Lady Gaga herself about the parody, and when she heard it she personally cleared him to release it commercially.

[kphoger]

he did not receive permission from the studio behind the original song.

Atlantic Records refused

Lady Gaga's management team denied him permission

None of those statements mean they could actually legally prevent him from selling parodies of the songs in question.

In the case of You're Pitiful, in fact, in Weird Al's own words:

The legality in this case is somewhat moot.  James Blunt could still let me put it on my album if he really wanted to, but he obviously doesn't want to alienate his own record company... and my label could release the parody without Atlantic's blessing, but they don't really want to go to war with another label over this.  So really, it's more of a political matter than a legal matter.

I have a long-standing history of respecting artists' wishes.  So if James Blunt himself were objecting, I wouldn't even offer my parody for free on my Web site.  But since it's a bunch of suits—who are actually going against their own artist's wishes—I have absolutely no problem with it.

[Scott5114]

I admit that I mis-spoke (mis-typed?) here. As I read the articles further, the assertion was that, because he gave up trying to sue for copyright infringement (realizing the amount of time and money it would take to go after everyone), an argument could be made now that Calvin is basically public domain because the creator has declined to defend the copyright.

That argument wouldn't be a very good one, because whether a copyright is defended enough is NOT a criteria for something entering the public domain. That's trademark law. Copyright law is all about who published the work (and whether they are alive or not), when, and where.

Don't make me tap the Hirtle chart. (Hirtle is a Cornell law professor who made this chart, which is used by Wikipedia/Wikimedia Commons to know what the law is regarding copyright. It is as close to definitive as you can get without talking directly to an IP lawyer.)

[D-Dey65]

On the other hand, Lady Gaga's management team denied him permission to parody "Born This Way", so he released "Perform This Way" online for free too. Except nobody had talked to Lady Gaga herself about the parody, and when she heard it she personally cleared him to release it commercially.

Ahh, but that came with certain conditions. She wanted him to donate a buck from every earning of the single to the Gay Mens' Health Crisis, or some other A.I.D.S. related charity. Kurt Cobain had conditions for releasing "Smells Like Nirvana" too. He wanted to play the guitar on his single. He didn't join him in every concert though.

[LilianaUwU]

Kurt Cobain had conditions for releasing "Smells Like Nirvana" too. He wanted to play the guitar on his single.

Similarly, Mark Knopfler of Dire Straits did the guitar riff for Money for Nothing/Beverly Hillbillies*.

[kkt]

If you're letting a child under at least 13 have unfiltered, unsupervised, and unlimited internet access in the first place, you're doing something wrong.

Children have always found a way to find inappropriate material - their father's Playboy collection, a dusty bottle of Manischewitz in the garage, a 3rd-generation VHS copy of "Faces of Death" - my mom found pot in my brother's bedroom and was furious until she realized he took it from their sock drawer. You will never be able to control everything they happen upon - but you don't have to make it any easier for them to do so.

There are ways to keep children from seeing NSFW materials without enforcing ruthless, draconian copyrights to materials created by folks who died many years ago.

For typical book authors, especially when they are not well known, in order to get published the author signs their rights over to the publisher.  The publisher wants to know, when they take a risk on an unknown author, that those rights are going to last for a while - and not end abruptly if their author happens to get run over by a truck next week.

[Molandfreak]

If you're letting a child under at least 13 have unfiltered, unsupervised, and unlimited internet access in the first place, you're doing something wrong.

Children have always found a way to find inappropriate material - their father's Playboy collection, a dusty bottle of Manischewitz in the garage, a 3rd-generation VHS copy of "Faces of Death" - my mom found pot in my brother's bedroom and was furious until she realized he took it from their sock drawer. You will never be able to control everything they happen upon - but you don't have to make it any easier for them to do so.

There are ways to keep children from seeing NSFW materials without enforcing ruthless, draconian copyrights to materials created by folks who died many years ago.

For typical book authors, especially when they are not well known, in order to get published the author signs their rights over to the publisher.  The publisher wants to know, when they take a risk on an unknown author, that those rights are going to last for a while - and not end abruptly if their author happens to get run over by a truck next week.

True. It may be reasonable for a company to have copyright protection for the term that any other work would have (in which case Mickey Mouse would actually become public domain in 2041, 70 years after the death of Ub Iwerks) but allowing a corporation to renew the copyright perpetually after that point is just ridiculous.

[kkt]

So playwrights should all be unpaid?
I think there is something wrong with that.

If the school pays for a 24-role play, and makes 24 photocopies of the script so the originals aren't damaged by the 24 high school students in the play, that is entirely fair in my eyes.

If the director at School A makes photocopies to give to the director at School B so that School B does not have to pay, that is not fair.

Publishers of typical plays get money in a couple of ways.  The biggest is the performance fees.  Everyone putting on the play pays something, and it varies widely from play to play and publisher to publisher.  Some publishers give a break to schools, and some don't.

Additional copies of the script are typically not a profit center for the publisher.  At the drama library where I worked from 2001-2018, the library was paying $8 to $9 per script plus shipping.  We had standing orders for one of every play published by the big play publishers:  Samuel French, Dramatists Play Service, Dramatic Publishing Co.  Also when one of our borrowers lost a copy they had checked out we gave them the option of buying a replacement themselves and bringing it to us, so I know that's what those borrowers were paying too.  Photocopying costs almost as much, plus the drama teacher would have to spend a lot of time making the copies. And the photocopies would be loose pages, less convenient to hold while rehearsing.  Publishers have hundreds or thousands of copies printed and bound at once on high volume equipment.

Music Theatre International has the rights to a lot of current musicals, and they do not cater to schools.  No copies available unless you've paid performance rights, then the copies are loaned and you're required to return them afterward; if you "lose" or otherwise keep them the charge is punitive.  They don't care much about the condition, just about there not being unauthorized copies around, so reducing wear on the originals is not really a valid for photocopying it.  MTI is also aware of where the touring companies and other authorized performances are happening and will not license another performance in the same city at the same time.

Nobody is making a lot of money in plays.

[Scott5114]

I would favor a much shorter copyright term for fictional works—20 years after publication seems sufficient. Enough time to make money off of it, but short enough that you actually have to do something new and not coast off your one hit for the rest of your life. (It's been roughly 20 years since Harry Potter came out and Rowling was able to make a billion dollars in that time, and now she's just retreading the same story over to have another go at making a buck off it—maybe it's time to move on to something new and let someone else play with your old toys?)

Lest someone play the "how would you feel if" card, I can't think of a single thing I created in 2005 that I feel is worthy of me still holding copyright over it. (Hell, most of the stuff I created in 2005 I released to the public domain then.) And I would hope that by 2045 I've gotten better at making stuff to the point that I no longer care for the stuff I'm making now.

For non-fiction, I'm not sure there should be a copyright at all, since it inhibits the spread of potentially-useful information, and by the time it's out of copyright it's likely to be outdated. Very early on, 2002 or 2003 or so, Wikipedia imported part of the newest Encyclopedia Britannica that was out of copyright, which was the edition from like 1903 or something; as you can imagine there were only a handful of articles that were actually usable, since most of the articles were either out of date or not stylistically acceptable for a modern publication or both. It seems silly to me that the copyright term was so long that what got released to the public domain was practically useless.

[LilianaUwU]

So playwrights should all be unpaid?
I think there is something wrong with that.

If the school pays for a 24-role play, and makes 24 photocopies of the script so the originals aren't damaged by the 24 high school students in the play, that is entirely fair in my eyes.

If the director at School A makes photocopies to give to the director at School B so that School B does not have to pay, that is not fair.

If it's a small artist, sure, but it's always morally correct to steal from multibillion dollar corporations.

[TheCatalyst31]

On the other hand, Lady Gaga's management team denied him permission to parody "Born This Way", so he released "Perform This Way" online for free too. Except nobody had talked to Lady Gaga herself about the parody, and when she heard it she personally cleared him to release it commercially.

Ahh, but that came with certain conditions. She wanted him to donate a buck from every earning of the single to the Gay Mens' Health Crisis, or some other A.I.D.S. related charity. Kurt Cobain had conditions for releasing "Smells Like Nirvana" too. He wanted to play the guitar on his single. He didn't join him in every concert though.

It looks like Weird Al decided to donate his profits to the Human Rights Campaign on his own, because he was a little afraid to parody a gay rights anthem.