by Raizel Liebler
Considering Weird Al has his first #1 album on the Billboard charts, many have taken this as an opportunity to do a retrospective on his career. But outside of his musical and parodic impact, he has also had an impact on law. This isn’t so strange – this album is the last one in his contractually obligated series with the record company he’s been with since 1984. He’s also talked about the difference between his rights as an artist – and those of his record company – considering he can’t even put his own videos on his own YouTube channel without them being pulled off due to ContentID.
So I think it is important to look over Weird Al’s impact on law — especially how all us use Weird Al’s work as a shorthand for everything from lighthearted parodies to the ubiquity of licensing music. The way that he goes about his creations through licensing rather than relying on fair use has been used as justification to limit fair use – under the assumption that all artists are willing to license their works – even if the new product makes fun of them.
Weird Al or his works have been cited by a large number of legal scholars in almost seventy-five law review articles over the years, including in at least six articles by at least three of the top 30 IP scholars — Mark Lemley (Mark Lemley & Stacey Dogan, Parody as Brand, 47 U.C.D. L. Rev. 473, 503 (2013); Mark Lemley, Should a Licensing Market Require Licensing, 70 Law & Contemp. Probs. 185, 191 (2007)); Jonathan Zittrain (Jonathan Zittrain, Privacy 2.0, 2008 U. Chi. Legal F. 65, 83 (2008)) and Rebecca Tushnet (Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity, 70 Law & Contemp. Probs. 135, 161 (2007); Rebecca Tushnet, My Fair Ladies: Sex, Gender, and Fair Use in Copyright, 15 Am. U. J. Gender Soc. Pol’y & L. 273, 297 (2007); Bruce P. Keller & Rebecca Tushnet, Even More Parodic than the Real Thing: Parody Lawsuits Revisited, 94 Trademark Rep. 979, 985, 996, 997 (2004)) and many others, including Kembrew McLeod & Peter DiCola, Non-Infringing Uses in Digital Sampling: The Role of Fair Use and the De Minimis Threshold in Sample Clearance Reform, 17 Deakin L. Rev. 321, 329 (2012).
But his influence isn’t just in rocking the possibly non-existent borderline between parody and satire – let alone tribute, takeoff, and more, but has been cited in law reviews to talk about topic from racial profiling (Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla. L. Rev. 305 (2012)) to the RIAA (Vincent J. Galluzzo, When Now Known or Later Developed Fails Its Purpose: How P2P Litigation Has Turned the Distribution Right Upside-Down, 61 Fla. L. Rev. 1165 (2009)) to defining what goes into Spam – the meat product (Pamela C. Chalk, A Pig by Any Other Name Would Smell as Sweet, 12 J. Contemp. Legal Issues 340 (2001)).
The first law review citation to Weird Al I was able to find was this 1987 article: Kenneth J. Nunnenkamp, Musical Parody: Derivative Use or Fair Use?, 7 Loy. Ent. L.J. 299 (1987). Nunnenkamp mentions how “Like A Surgeon” uses the entire musical score of Madonna’s “Like A Virgin”, but that he licenses use of the songs used in his parodies (302). Oh, and “Weird Al[‘s]… humorous remakes of popular songs should hardly be a fair use simply because they criticize something, especially when one considers the possible detriment such a song, if unauthorized, could have on the marketability of the original.” (320).
There is even pre-Campbell law review article dedicated to Weird Al: Charles Sanders & Steven Gordon, Stranger in Parodies: Weird Al and the Law of Musical Satire, 1 Fordham Ent. Media & Intell. Prop. L.F. 11 (1990). The authors analyze Weird Al’s music under the pre-Campbell standard:
“Mr. Yankovic’s ability to rely on the fair use doctrine to excuse the unlicensed uses of the songs and music videos he parodies is extremely doubtful. Application of the “verbatim copying” threshold test would present an insurmountable hurdle to any claim of fair use by Mr. Yankovic. His taking of the full chord structure, melody, and portions of the lyrics of the original underlying musical compositions which he parodies is clearly substantial enough to pre-empt a finding of fair use as a matter of law, regardless of any number of “mitigating” circumstances which might exist. The same is true of his near-verbatim takings of the accompanying music videos which he sometimes parodies along with the song and sound recording. Even assuming that Mr. Yankovic could survive application of the verbatim copying threshold test, and taking into account that there is no reason to suspect he would fail the “nexus” threshold test or run afoul of presumptions concerning obscenity, Mr. Yankovic would still not be able to satisfy the burden of proving fair use.” (35)
But the article talks about why artists might not want to license their compositions to Weird Al and others in purely economic terms:
Weird Al’s substantial market success is responsible for the willingness of copyright owners to grant him permission to parody their musical compositions, and has made it possible for Yankovic to bargain for a lucrative share in the copyright of the parody version of the song. He further surmises that fledgling parodists and comedians are often denied permission to parody by copyright owners who believe the sell-evident risks of damaging the value of their copyright by permitting the parody is not offset by a “guarantee” of financial return which Weird Al can provide.
Despite not being cited with Campbell v. Acuff-Rose, 510 U.S. 569 (1994) – the Supreme Court’s big parody/satire case, Weird Al was referenced by both parties in their briefs regarding how he licenses and pays for his parodies. The Reply Brief for Campbell mentions Weird Al:
Respondent points to the recordings of “Weird Al” Yankovic as examples of music parodies produced pursuant to a license from the copyright holder. … Unlike Petitioners’ parody, however, none of these parodies appear to be critical of the underlying work or recording artist, nor do they comment on any controversial issues, so that the copyright holder would be unlikely to license them. Parody would not long survive as a unique and valuable art form if it were limited to such bland treatment of popular musical works and their themes.
And while Weird Al wasn’t referenced in the Supreme Court decision, he was referred to in the lower court decision in the Sixth Circuit, Acuff-Rose Music v. Campbell, 972 F.2d 1429, 1440 n.3 (1992) where the court refuses to call Weird Al’s songs satire or parody – instead referring to “‘comic’ effort, such as those created by comic musician Weird Al Yankovic.”
But Weird Al also serves as a cultural touchstone in filed briefs in cases in varied subjects. Below are some of my favorites, in the way they assume that the judges (or their clerks) will automatically know of Weird Al’s oeuvre:
In a 2007 Brief by the Texas AFL-CIO to the Texas Supreme Court:
Utilizing the Court’s novel interpretation of the term “perform,” for example, one could hire Madonna or Usher to “perform” at a concert but they could do so fully and completely by hiring Weird Al Yankovic to sing in their stead. Those who hail this decision should, therefore, be careful what they wish for.
In a 2012 Brief to the Ninth Circuit:
This is an example of what does not constitute infringement — i.e., different expression of a very basic idea — in this case, the idea of describing what a mother says to her child. … Such words come from ideas that have found their way into any number of song lyrics and titles, including … “Just whistle while you work, and cheerfully together we can tidy up the place . . . And as you sweep the room . . . .” (from “Snow White’); they are used by artists from Weird Al Yankovic (he commands in his lyrics to “Eat it”: “Don’t want to hear about what kind of food you hate, You won’t get no dessert ‘til you clean off your plate, So eat it, Don’t tell me you’re full, Just eat it, eat it, eat it . . . .”) to Vampire Weekend (in their lyrics to “Cape Cod Kwassa Kwassa,” they sing, “Is your bed made? Is your sweater on?”) to name only a few.
Weird Al is America’s equivalent to the parodies in Alice’s Adventures in Wonderland and Though The Looking Glass – where culturally known materials are parodied. Since the 1850s, we’ve forgotten what “You Are Old Father William” refers to, but children still love hearing Twinkle, Twinkle Little Bat for the first time because they understand the reference! So I hope that Weird Al’s songs continue their staying power – though I expect Eat It to be the longest lasting song – even if kids don’t remember Beat It.
Think about the thread that runs through a mashup of the audio of Weird Al’s Handy with the video of Fancy which is an unlicensed music video unlicenced “re-telling” of the movie Clueless (including being filmed in the same high school) which is in turn officially a modern take on the public domain work Emma by Jane Austen. This video highlights our present difficulty in determining where the lines for quoting, allusion, and licensing should be drawn in law and in the larger culture — and it runs all the way from a bizarre double entendre about wood stripping all the way back to the writings of a book published 199 years ago that is still popular today. But watch it while you can kids, because YouTube could pull it at any time!
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