When fake lyrics are better than real lyrics
More than six months ago, I posted a YouTube video that had been at least two years in the making. Around 2014, a misheard a phrase in Taio Cruz’s pop hit “Dynamite.” “Gotta let go” changed to “Galileo” (a leap I was not the first person to make), which eventually grew into “Ganymede,” a parody song about the four largest moons of the planet Jupiter. The new parody lyric was memorable while being educational, and also had the advantage of actually rhyming. After I put the lyric to paper, I realized that I wanted to share with a wider audience, but the lyric sat while I tried to find someone else to perform the music and make a video. Last summer, 2016, I realized a music video wasn’t going to happen unless I made it myself, so I bit the bullet, taught myself GarageBand and iMovie, and made it. Here’s the final product:
This treatment is not a cover, but a parody—instead of putting my own spin on someone else’s artistic vision, this parody derives humor from the music being recognizable. Because of this, I put a lot of effort trying to recreate the sounds of "Dynamite" with the tools that came prepackaged in GarageBand (though I transposed it down a minor third to fit my voice), with mixed results.
Wait, is that legal?
Something interesting happened less that 48 hours after I had privately posted the video on YouTube—YouTube’s music algorithm identified the song as “Dynamite acapella cover” and additionally, EMI music claimed the song as their property and then optioned it for monetization (meaning they put a commercial in front of it). I was impressed that the algorithm was correct in identifying the song title, even if the version was wrong, but is EMI correct in claiming ownership of the music?
Recorded music actually has two copyrights—one for the underlying musical composition (usually controlled by the publishers) and one for the actual recording (usually controlled by the producers); that is why when someone records a cover, they still need to get copyright permission from the songwriters. In my case, it is the publishers (EMI) that asserted their rights over the underlying composition of “Dynamite” on the basis that it's cover version.
But parodies are a special case: in order to make their comic point, they need to borrow music, otherwise the joke doesn’t make sense. Courts have protected parodies under copyright Fair Use, which is a legal doctrine in copyright law that allows use of copyrighted material in a limited way, usually with a transformational intent. Fair Use is how we can quote other copyrighted works without asking permission or getting sued all the time; or how the news can show video clips; or we can xerox parts of a book—the point is we are not using the copyrighted material to steal financial or other gain from someone else, but critiquing it, putting into another context, or changing it into something else.
Fair Use is complicated, but to boil it down, parody is protected because it conveys a transformational message that can only be accomplished by using a fairly large portion of the original material. This 2012 article from Library Journal (also a good introduction to some of the problems of posting a parody video) raises another important point—defining something as parody can be tenuous. Parody has to make fun of the material itself, instead of just being satire (which is not protected). Does one need to ask for permission to write a parody, though, like Weird Al does? The answer is no; asking permission is not a legal requirement for Fair Use. Also, if people could sue you just because you made fun of them, it would be curbing free speech.
A new approach
Since 2012, publishing companies have realized that putting down take-down notices on YouTube videos is unsustainable, bad PR, and might even squelch free advertising. Instead, they’ve just decided to monetize these videos, which is what happened with my music video "Ganymede." The YouTube algorithm, though, analyzes music, not lyrics, so it will automatically flag anything that sounds like the original, regardless of if it a parody or not. This is a big problem with the system. There is a mechanism to dispute the copyright claim, but most people don’t have the time or money for the legal battle which may ensue or just don't understand copyright law (and can you blame them?) The result is that these companies make money off of someone’s else work.
I believe “Ganymede” is a parody and should be protected under Fair Use, but on the other hand, I’m not interested in making money. Six months after posting, the video still only has less than 200 views, so it doesn’t look like I’ll be getting any viral YouTube fame. I'm not planning on disputing the claim at the moment.
But the video was fun to make and I learned a lot about making music—and copyright.
What do you think? Should I dispute EMI’s copyright claim?
Update 6/26/2017: I decided to dispute the claim; you can read about what happened here.