[Dixielandjazz] Infringement, Fair Use and Quotes

[Stephen G Barbone]

On Apr 15, 2008, at 9:20 PM, Larry Walton Entertainment - St. Louis  
wrote:

> Fair use doesn't mean free does it?  I thought that was the doctrine  
> that said you could use anyone's  copyrighted work without  
> permission but you had to pay them for it.  Meaning no one could  
> have exclusive right to a song an example might be a tune by let's  
> say Dolly Parton.  She would not be able to stop someone from  
> singing her song providing they paid a fee to the copyright holder.   
> Isn't that fee a set amount?

The fair use doctrine under sec 107 does indeed mean free, as well as  
without permission of the copyright holder. But you are mixing two  
unrelated ideas above. Fair use means

1) You can quote a SMALL PORTION of a copyrighted work to make your  
own point. BUT, not a materialportion. ( See Gerald Ford discussion  
below)  and/or

2) If you are satirizing or doing a parody, you can use someone else's  
tune without payment or permission provided you meet the requirements  
of section 107. (That you don't reproduce the entire original work,  
and that what you add materially changes the original to make it  
"yours" etc.

> As I see it there is a difference between parody or satire and  
> copying.  I could see how that would work in the case of a rap tune  
> which typically has no music but only rhythm and words.  Words can  
> make fun of or change the meaning but notes only?

I would argue legally that if I play 4 bars of Peter and The Wolf  
during an improvised solo chorus of When The Saints Go Marching In,  
that I am parodying one or the other. It sure makes the audience  
smile. To me, humor is easily stated musically by notes alone.


> To me anyway a parody is different than a quote as done by most  
> musicians. See below from Wikipedia
>
> A parody (pronounced ['p???di?]), in contemporary usage, is a work  
> created to mock, comment on, or poke fun at an original work, its  
> subject, or author, by means of humorous or satirical imitation. As  
> the literary theorist Linda Hutcheon (2000: 7) puts it, "parody . is  
> imitation with a critical difference, not always at the expense of  
> the parodied text." Another critic, Simon Dentith (2000: 9), defines  
> parody as "any cultural practice which provides a relatively  
> polemical allusive imitation of another cultural production or  
> practice."

I would argue legally that a Peter and The Wolf quote in the middle of  
The Saints is a parody "which provides a relatively polemical allusive  
imitation of another cultural production or practice." e.g. legitimate  
music being parodied by illegitimate music. As well as "imitation with  
a critical difference, not always at the expense of the parodied  
text." And I would argue legally, that musical quotes are created "to  
mock, comment on, or poke fun at an original work, . . . by means of  
humorous or satirical imitation". As stated above by both the learned  
critic and the literary theorist.

> Parody may be found in art or culture, including literature, music,  
> and cinema. Parodies are colloquially referred to as spoofs or  
> lampoons.

I would argue legally that a quote is a musical reference of a spoof  
or lampoon and exactly what the above talks about. "Parody may be  
found . . .(in) music".  Most musicians I know, if not all, think they  
are exhibiting a sort of "in" humor when they insert a quote into a  
tune.

But like anything else, fair use is subjective when decided by the  
courts. A recent quoting of a 300 word snippet from a 200,000 word  
memoir of Gerald Ford's was ruled not to be exempted from the  
copyright law under the fair use doctrine. The taker had to pay. Why?

Because those 300 words were the reasons Ford gave for pardoning  
Richard Nixon and were deemed to be of material substance to the  
memoir, as well as the article written by the taker, not just an  
incidental snippet.

Like I said, it is a tricky subject with no clear lines of demarcation  
as to what can be exempted from royalties and permission under fair  
use, and what cannot. But clearly, musical quotes are exempted from  
both royalty payment and permission by section 107 of the copyright law.

So don't worry, you can play a simultaneous 4 horn chorus of Bill  
Bailey, Wash & Lee Swing, Tiger Rag (all public domain) along with  
Bourbon Street Parade (copyright protected)  and not have to pay  
royalties or get permission because you are satirizing via parody, the  
fact that these songs all have the exact same chord pattern.

Cheers,

Steve Barbone
www.myspace.com/barbonestreetjazzband