[Dixielandjazz] Infringement, Fair Use and Quotes

[Robert S. Ringwald]

My head hurts....

--Bob Ringwald


----- Original Message ----- 
From: "Stephen G Barbone" <barbonestreet at earthlink.net>
To: "Bob Ringwald" <robert at ringwald.com>
Cc: "Dixieland Jazz Mailing List" <dixielandjazz at ml.islandnet.com>
Sent: Wednesday, April 16, 2008 9:15 PM
Subject: [Dixielandjazz] Infringement, Fair Use and Quotes


> 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
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