Fair use in parodies

Bangsamoro singer Shaira Moro recently made waves with her song “Selos,” amassing millions of listeners and immediately attracting a fan base. With the region long known for its prolonged conflict and severe poverty, the emerging pop star was celebrated for giving us a fresh look into what Bangsamoro can offer in terms of talent.

This rise to fame, however, was cut short after news broke that Australia-based singer-songwriter Lenka is taking action against Moro’s “Selos” for allegedly borrowing the melody from her song “Trouble is a Friend.”

Many have called Moro’s song a parody. Thus, it must be considered fair use, which absolves the user of any infringement liability for using the work without the author’s permission. As a quasi-judicial agency, IPOPHL may still handle this case if lodged in our office. As such, we have our hands tied in directly commenting on the issue's merits. However, given the importance of advancing copyright awareness, I hope to shed light on parody from the viewpoint of the law and jurisprudence.

According to Section 185 of the Intellectual Property Code of 1997, the use of copyrighted works for criticism, comment, news reporting, teaching (including limited copies for classroom use), scholarship, or research is not an infringement of copyright. Parody then could fall as copyright for its critical bearing.

US jurisprudence has commonly defined parody as using elements of or mimicking an original work while criticizing the substance or style of that original creation. However, not all that is claimed to be a parody is a true parody. For example, satirical works, which mimic the original work but criticize something else, are not — more of this next time. 

The IP Code elaborates on the four factors to be considered in determining fair use, and I discuss each in the context of parody cases.

1. Purpose and character of the use. This analyzes whether the use was for non-profit purposes, educational, criticism, commenting, or news reporting. It also analyzes the degree to which the use has a transformative purpose (using a work in a context different from what is originally intended), in which case fair use is likely.

In 1990, Acuff-Rose Music Inc., publisher of the song “Oh, Pretty Woman,” sued the rap group 2 Live Crew and its record company over the latter’s song "Pretty Woman" for alleged infringement. The record used the beats of Acuff-Rose's Pretty Woman song in the intro and finale and the words “pretty woman.” The rest of the song was different. 2 Live Crew claimed that what they did was a parody. However, Acuff-Rose was against its use in rap music.

The US Supreme Court held that 2 Live Crew’s use was transformative. It also held that whether the parody was made in good or bad taste did not matter as parodies are protected by the First Amendment, which guarantees freedom of expression.

2. The nature of the copyrighted work. The more creative the borrowed work is, the more difficult it would be to claim fair use. Hence, factual or nonfiction works, such as straightforward news reporting, are fair use. However, this test cannot stand alone as the portion of the work used is also in question. This leads us to our third test.

3. The amount and substantiality of the portion used. In general, the more you take, the more likely you are to be sued. In some cases, no matter how little you take, if it is considered to be the “heart” or the most important part of the copyrighted work, a fair use defense is rendered weak.

What is long and short may also differ. In Newton vs. Beastie Boys, the group’s use of a six-second, three-note segment, which was two percent of James Newton's four-and-a-half-minute “Choir” composition, was fair use, according to the US Supreme Court. In Fisher v. Dees, a US appellate court decided that the “When Sonny Sniffs Glue” parody of the original “When Sunny Gets Blue” song was fair use even as it incorporated 29 seconds and six bars from the original.

4. Effect on the market. If the effects of the copyrighted work diminish the potential market or value of the original work, fair use is a difficult defense.

In Campbell vs. Acuff-Rose, the US Supreme Court found that 2 Live Crew’s single is unlikely to undercut the market of Acuff-Rose’s original song as the two serve different markets.

Ruling out fair use requires intensive analysis. As such, our Bureau of Copyright and Related Rights recently released a comprehensive guide on statutory fair use. It laid out a clearer explanation with specific common scenarios in private and non-profit performances, news reporting, judicial proceedings, and works intended for the visually impaired, among others.

I encourage all Filipino creatives, educators, and innovators to add this material to their 2024 reading list to be informed, enlightened, and entertained.