Song Parodies – Introduction
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?
Copyright considerations
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”. Fair dealing generally, and the specific parody exemption, are an attempt to balance a creator’s ownership rights with an individual’s right to freely express themselves.
Options for exemption
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. [1] 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.
[1] In addition to falling into one of the fair dealing categories set out in the Copyright Act, the use of the content must also be “fair”, which is a question of fact and depends on the circumstances of each case. The following factors can be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, the list provides a useful analytical framework to govern determinations of fairness (See CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339).
Would the spoof song Gangnam Paradise qualify for the parody exemption to copyright infringement in Canada?
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Cases of infringement
There are few Canadian cases that have directly deal 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. (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, Gangtsa’s Paradise.
Licence Agreements
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 (for more, see our blog about interpolations).
Also important to note is that parody only exists as an exemption to copyright infringement, and there is no similar exemption in trademark law. So be careful that your song doesn’t also use logos, brands or slogans owned by others without their permission.
Song parodies – Conclusion
It has been said that a joke is a misdirection, a magic act that plays with expectation, logic and surprise. Certainly, new lyrics sung over a familiar tune can, in this way, create something genuinely amusing. But the surprise at discovering the difference between the everyday use of the term “parody” versus a “parody” for copyright law is something you or a music publisher might not find particularly funny.
If you have any questions about parodies, including regrading helping you get permission whether or not your song arguably is a parody, or other entertainment law questions, please reach out, we’d be happy to help!
[1] In addition to falling into one of the fair dealing categories set out in the Copyright Act, the use of the content must also be “fair”, which is a question of fact and depends on the circumstances of each case. The following factors can be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, the list provides a useful analytical framework to govern determinations of fairness (See CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339).
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Updated to June 6, 2022
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
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