Song Parodies and Copyright Law

Criticism is … Critical (and Other Truisms)

MICHAEL DUBOFF, entertainment lawyer at Edwards Creative Law – Canada’s Entertainment Law Boutique™

Have you ever thought to yourself, “Hey, I’ve got a fantastic idea for a parody song”? If so, your next thought might have been, “do I actually though?” Creating new lyrics to an already-famous song might be funny; certainly, laying different, incongruent lyrics over a familiar song can have that effect. But does that mean it is a “parody” for the purposes of Canadian copyright law? A work of parody, under certain circumstances, may be exempt from what would normally be an infringement of copyright. Traditionally, the concept of parody exists at law as a form of criticism and commentary and is an extension of freedom of expression. In Canada, works of parody are protected from claims of copyright infringement under the doctrine of “fair dealing”, which is similar to, but distinct from, the U.S. doctrine of “fair use”. Generally, fair dealing, and the specific parody exemption, are an attempt to balance a creator’s ownership rights with an individual’s right to freely express themself. The fair dealing exemption is codified in the Copyright Act (Canada) and provides that, under certain circumstances, use of a copyright protected work does not infringe copyright if the work is used for one of the following purposes: research, private study, criticism, review, news reporting, education, satire, or parody. Importantly, not all song parodies, even if they are referred to as parodies by the artist, qualify for the exemption. Here is a hypothetical that has a relatively common fact pattern: a song (let’s call it Gangnam Paradise) that an educator wrote and recorded to teach children phrases in Korean, is sung to the melody and over similar beats as those featured in the song Gangsta’s Paradise, made famous by Coolio. The song contains no commentary on gang culture or criticisms of Coolio – Gangsta’s Paradise is actually about the pessimism a gang member in south central LA felt about his life, surroundings and violent, dangerous lifestyle. Would the spoof song Gangnam Paradise qualify for the parody exemption to copyright infringement in Canada?

There are few Canadian cases that have directly dealt with parody songs, but U.S. law on the subject can be informative (though not determinative) in helping determine the scope of Canada’s parody exemption, especially if you’re a Canadian artist who plans to distribute music in the U.S. (i.e., probably everyone). The famous U.S. Supreme Court case, Campbell v. Acuff-Rose Music, Inc., found that where a potential parody imitates the characteristic style of the original author, the parody version must “ridicule or criticize the copied work itself.” This is not the only consideration a court would make, but if the principle in Acuff-Rose were applied to our example, arguably, the lyrics of Gangnam Paradise would not qualify as a parody as it has nothing to do with the lyrics of Gangsta’s Paradise and does not contain any criticism of Coolio or the song’s message. In our example, the parody version would likely infringe the copyright in the underlying song, Gangsta’s Paradise. You may wonder how Weird Al Yankovic, perhaps the world’s best-known parody artist, avoided copyright disputes in making his “parodies” as they almost always fall into the “funny new lyrics” category and not the “criticism of the subject matter or author” category. He did this simply: by getting permission from the copyright rightsholders in the form of a licence. Note, Coolio claimed he didn’t personally approve Weird Al’s song Amish Paradise as a “parody” of Gangsta’s Paradise, initially saying that he thought it took away from the serious message of the original work (though he softened his position on his opposition to the spoof years later). Another twist in this story is that Gangsta’s Paradise uses and interpolates samples from Stevie Wonder’s lesser-known track, Pastime Paradise!

Also important to note is that parody only exists as an exemption to copyright infringement, and