Friday, November 5, 2010

Do We Need Permission for Out-of-Tune Song in Mockumentary?

Dear Rich: My friends and I recently made a short film. It is a "mockumentary" on Sunday school. In the video, a teacher poorly sings (no instruments accompanying her) a popular song for about 10 seconds. The song in question is Blame it on Cain by Elvis Costello. The question is, do we need to obtain copyright for an out of tune rendition? We would eventually like to submit this film to local film festivals and want to make sure we're in the clear before we pursue anything. Alas, copyright law doesn't care whether your version is in tune or out tune (or even if it's out-of-tune and you later use this to fix it). Ifout-of-tune singers didn't have to pay for rights, the music biz would likely go belly up (Ashlee Simpson, call your lawyer). So we'll start with the premise that any unauthorized version is considered an infringement, even if only for ten seconds. 
Possible defenses. It's unlikely you can afford a lawyer to fight but if you want to defend your use, you have two arguments. One is fair use. You can argue it's a traditional fair use and that you've only taken a small amount to comment on the song. Or alternatively, you can argue it's a parody in that the out-of-tune version of Blame it On Cain sung in a Sunday School mockumentary is being used to poke fun at the lyrical message -- blaming sin on a Biblical character. Cases such as this one (When Sunny Sniffs Glue) and this one (the Pretty Woman case), may bolster your defense. Alternatively, you might be able to make the argument that the amount you took was so small that it didn't matter (known as a de minimis argument). But as we remind readers, these are defenses -- which means you're hoping to stop someone who's already on the offensive -- and unfortunately that often means you're on your way to court.