the guys over at TechDirt have pointed out an issue where a comedian was required to re-tape a joke due to Comedy Central not having the licensing for the song “We Are The World”.
The issue here is not really a matter of copyright, but IP protectionism gone wrong.
There is a clear case of fair use under parody with this and such issues have previously been held by the Supreme Court as a first amendment issue when the parody has been intended as a criticism as was the case in Campbell v. Acuff-Rose Music.
Now, to be fair, in that case the criticism was of the original work. But looking at the specifics of that case, the court deemed that the work was transformative which using a song in a joke would certainly be, provided social benefit by making use of the earlier work which this appears to do as well as the effect upon the the potential market of the original work which in this case I can only imagine would be nil.
The remaining factor is the amount of the original work used in the transformative work. In this case, its four words sung by a comedian… not a singer doing a cover of the song, just singing the four words and that’s it.
The Supreme Court sent that issue back to a trial court to determine if the use of the original work was excessive, but I have to believe that a non-singer using four words to frame a joke about the overuse of the word love with no music from that song to accompany him certainly would not fall under excessive.
My own personal viewpoint is that Comedy Central’s parent company Viacom is in a rather no win situation on this type of issue. If they stand by the fair use principal that opens them up to others claiming fair use on IP that they own the rights to undermining any future attempts to maximize control and the ability to monetize the works they own the rights to. It would be good if they could see the unreasonableness of taking such action, but I doubt they will.
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