The following provides a summary regarding the use of song parodies and celebrity voice imitations in station programming.
I. Parody
Parody is a form of creation that imitates a serious piece of work for humorous effect. By its very nature, parody makes use of the copyrighted work of others, and, because the purpose of the new creation is criticism, ridicule or just spoofing, there is tension between the parodist and the owner of the underlying work. Since it is unlikely that the copyright owner will license someone to satirize his work, the parodist must rely on the "fair use" defense if he is sued for copyright infringement where he has made a substantial taking from the underlying work. Because utilization of parodies relies on a defense theory and is not pursuant to any licensing or authorization concept, the filing of copyright infringement claims is not unusual in such circumstances. The fair use doctrine permits "[t]he fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research." 17 U.S.C. ยง 107. Thus, when used as commentary or criticism, parody is not intended to compete with the potential market of the parodied work and can be defended as a fair use. Not all humorous or critical interpretations of copyrighted works, however, are permissible. Three factors should be analyzed in order to determine whether a parody is permissible.
First, the parody must comment on the original copyrighted work itself. The source of the humor must be in the juxtaposition of the original work and the parody. Parodies which merely utilize a copyrighted work as a vehicle for commenting on other targets are not protected. See examples 1 and 2 below.
Second, while the nature of parody requires the inclusion of some aspects of the original to link the two in the mind of the public, the greater the extent to which the parody diverges from the original, the more likely a finding of fair use. Therefore, the parody should only include enough references to the original in order to 'conjure up' the copyrighted work.
Third, the parody should not usurp the market for the original. It should not be a replacement for the original, but rather an alternative to it in the market. Copyrights are economic rights, therefore it is crucial that the parody not destroy the market value of the original.
A few examples of how the fair use doctrine applies to parody follow:
Example 1:
A book criticizing the O.J. Simpson trial entitled The Cat NOT in the Hat was held to be copyright infringement of Dr. Seuss' The Cat in the Hat. The Simpson book utilized similar writing patterns and illustration styles as Dr. Suess. The aim of the parody was to attack the prosecution of O.J. Simpson, not to make fun of the children's book author. As a result, the parody failed to satisfy the first factor.
Example 2:
A Saturday Night Live sketch parodying the "I Love New York" advertising campaign entitled "I Love Sodom" was held a fair use of the original. The comedy sketch parodied the use of slick advertising and a catchy jingle to divert attention away from New York's many problems. The campaign itself was the target of the parody.
Example 3:
In 1989 the rap group 2 Live Crew recorded its own parodic version of Roy Orbison's 1964 song "Oh, Pretty Woman." The Orbison estate sued for copyright infringement. The 2 Live Crew version utilized the same opening line and bass riff as the original. The rap version, however, contained raunchy lyrics, sexual play on words and the use of different instruments. The Supreme Court ruled in favor of 2 Live Crew on the fair use defense, in part because of the various ways in which the parody differed from the original. The Court also reasoned that each song catered to a different audience and thus the parody was not damaging the market value of the original.
II. Celebrity Voice Imitation
Celebrity voice imitation, while similar to parody, is covered by laws relating to an individual's rights to privacy and publicity, rather than copyright law. Individuals have the right to control the use of their names and likenesses for commercial advantage and can sue a station or advertiser for violating such right. The term 'likeness' also extends to sound-alike imitations, which have in the past permitted well-known vocal performers to sue advertisers who mimicked their voices in commercials. The availability and scope of this right varies considerably from state-to-state but is particularly strong in states with established entertainment industries, such as New York and California. Both programming and sales personnel should be aware of the danger of inclusion of celebrity voice imitations in on-air material, particularly in commercial spots. In cases where the imitation is not obvious, stations should consider including a disclaimer (e.g. "All celebrity voices impersonated"). Any questionable material should be reviewed by counsel prior to airing. An example of the applicability of the celebrity voice imitation principle follows:
Example: An American car company obtained the rights to Bette Midler's song "Do You Want to Dance?" for a television commercial. After Midler declined the company's offer to perform the song in the commercial, the company hired Midler's former back-up singer and instructed the singer to sound as much as possible like Midler. Midler sued and won. The court held that Midler's right of publicity had been violated. The company was trading on consumers recognizing Midler's voice to help sell its cars.
