We recently had an enquiry from a theatre director wanting to know whether he could change the words of Madonna’s hit song, Like a Virgin for use in his theatre production. The legal issue here is what constitutes ‘fair use’ of a copyrighted work and what is simply copyright infringement. However, as we outline in this article, the issue is not always black and white.
What is fair use?
The fact that an artist’s copyrighted work has been copied does not necessarily mean that copyright infringement has taken place. The same law that gives copyright ownership to the original creator of a work also grants everyone else a general privilege of ‘fair use’ of that work.
The fair use doctrine is a defence against copyright infringement. It permits courts to avoid rigid application of the copyright statute when on occasion it would stifle the very creativity which the law was designed to foster, namely to ‘promote the Progression of Science and Useful Arts'.
Section 150-153 of the Copyright Act defines fair use as any dealing with copyrighted material for the purposes of ‘criticism; review; parody; news reporting; teaching or research'. If the work is used for any of these purposes, no copyright infringement can be found.
There has been considerable debate among the higher courts in Australia and America about what constitutes ‘fair use’. The courts have finally begun to commit themselves to judging this issue, albeit on a case by case basis.
Fair use factors
In the case of our theatre director, a court would consider the following factors in order to determine whether his use of Madonna’s work would constitute fair use:
Application of the law to parody
In the scenario we’ve discussed, the purpose for changing the lyrics was to parody or ridicule Madonna’s hit song, Like a Virgin.
The entertainment genre known as parody has long posed a challenge to the copyright doctrine. In fact, parody as an art form long predated copyright as evidenced by the work of Shakespeare.
The hoped-for benefits of parody are not only entertainment and enjoyment but also artistic innovation and social criticism. The legal problem though is that in order to parody a work, one also has to copy it sufficiently to create a recognisable ‘derivative work’. This is something that ordinarily requires consent of the copyright holder, which may not be forthcoming even for a fee.
America has led the way in facing this legal and intellectual dilemma, particularly in the case of Campbell v Acuff Rose. The court had to decide whether a rap song made by 2 Live Crew had violated the property right of Roy Orbison’s 1960s country rock hit, Oh Pretty Woman, the rights to which were assigned to Acuff Rose. 2 Live Crew did request permission from the copyright owner to use the work but were denied. They went ahead and published the rap song and were sued for infringement.
The court found that the material copied was a fair use of the work as it was a parody or play on words of the hit song. The court stated that even though there was “substantial copying” of Roy Orbison’s song, “when parody takes aim it must be able to conjure up at least enough of that original to make the object of its critical wit recognisable. It must therefore quote the most distinctive or memorable features that are contained in the song.” Therefore, although in most copyright cases any copying of work no matter how small or large is prohibited without the artist’s permission, in parody cases copying the ‘heart of a work’ is permissible in order for the parody to ‘take aim’.
It is uncontested in 2 Live Crew’s case, that there would be a copyright infringement but for the finding of fair use. Applying this precedent to the scenario of our theatre director, it would appear that as the theatre director significantly transformed the lyrics of Like a Virgin, to make fun of or parody the hit song, it would constitute a fair use and it is unlikely that copyright infringement would be found.
But not in all cases…
However, this is not true of every case and one needs to be reminded that this is a grey area of law to be judged on a case by case basis.
For example, in Dr Seuss Enterprises, L.P v Penguin Books, the court found that an author who mimicked the style of a Dr Seuss book to retell the facts of the OJ Simpson murder trial, was not entitled to claim the fair use defence to copyright infringement. The Court determined that the book entitled, ‘The Cat that is not OUT of the HAT’ was a satire, not a parody. The court emphasised that the book merely used the Dr Seuss characters and style to tell the story of the murder. As the book did not poke fun at or ridicule Dr Seuss, the court found that the author’s work was non-transformative and commercially affected Dr Seuss’ book market.
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes such as commentary and criticism.
Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a court of law. Courts take a subjective view of this doctrine and it is hard to determine whether you will be successful or not. If the factors are weighed up and it is determined that your purpose is not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages.