By Daniel Davidson
It is very likely that you have an opinion regarding the U.S. Supreme Court’s recent ruling on the POTUS’ health care law. It is very likely that you have expressed your opinion in some way, be it through a Facebook post, tweet, or talking over the water cooler. For one conservative, her opinion of Judge Roberts’ alleged political flip to vote in favor of the health care bill is being voiced through parody.
The conservative Media Research Center intern, Kathleen Burch, has made her dissatisfaction of the Supreme Court’s, blaming it on Roberts, decision known through her parody of Gotye’s “Somebody That I Used to Know.”
Now, let’s play a game of hypotheticals. Gotye, or Wouter De Backerh, is unpleased that a conservative based group is using his creative work to convey their message. He contacts his lawyer and asks what he can do to have the parody removed. We can now assume that he contacts an intellectual property attorney whose ears should ring when he hears Gotye say “parody.”
In this instance, the copyrighted work being parodied, “Somebody That I Used to Know,” is not protected by the Copyright Law. This is so thanks to Fair Use under Section 107 of the Copyright Act and Campbell v. Acuff-Rose Music Inc. (the case involving 2 Live Crew remaking Roy Orbison’s “Pretty Woman”). In determining whether a use of a song, or copyrighted work, is in fact a parody, the court would weigh the following:
- the purpose of the parody (often expressive criticism) and whether the work is “transformative” (adds something new to the copyrighted song);
- the nature of the parody (expression and creativity);
- the amount of the copyrighted song found in the parody; and
- the effect the parody has on the market value of the original song.
Should the parody fall within these safe havens, a claim of copyright infringement would fail.
It is very possible that Kathleen Burch’s parody would withstand any copyright infringement claim. So, for now, enjoy the politically motivated parody. Cheers.