Mel's Filk

Mel Tatum's Filk Lyrics

Fair Use September 13, 2010

Filed under: Uncategorized — melissaltatum @ 4:50 am

Fair Use
by Mel Tatum
tto: The Black Death by Seanan McGuire

note: a special thanks to Seanan for being so gracious about having her work filked (and that is said in all seriousness and not at all sarcastically – Seanan has seen this and was very gracious, and that was even after she heard me sing at Marcon this weekend!)

Golly it’s a songwriter! But she looks so sad! What’s wrong?

I’m not just a songwriter. I’m a law professor, specializing in the study of fair use and copyright

And it is parody that has me worried today

Parody? Why is that?

Well I wrote a song whose tune I borrow from Seanan McGuire
and I really do not want to get a letter to enquire
will i cease and stop my use it is infringing on her right
I really do not want to be a part of that whole fight

Why not?

The fair use doctrine stems from common law adjudication
It’s not black and white, it’s gray, it’s subject to interpretation
It has four parts that must be analyzed and weighed and measured
And if you do it wrong the court will view you with displeasure

How does the test work?

The first part of the test looks at the purpose and the nature
Commercial use is looked on by the court with much disfavor
But you can overcome the bad initial first impression
Transformative is best, it constitutes a new expression

What’s transformative?

Transformative is like a kinda legal alchemy
It is a talismanic use of your creativity
It alters the first work enough to be a new expression
The derivative is now deserving of the law’s protection

isn’t writing new lyrics enough?

Maybe, a company called Acuff-Rose filed suit against some rappers
saying their defense of fair use should be thrown into the crapper
Parody is fair use if it follows the conditions
but figuring those out takes more than erudition

Speaking in technical legalese, Acuff-Rose makes as much sense as fleas
It’s not enough to merely satirize; you must have the original in your sights
It’s stupid but the court has taken a position
You cannot use the first work just to get attention
I want the law to let me use the fair use doctrine
Oh god I think I’m gonna need some oxycontin

What’s the rest of the test?

The second part is useless in the case of parodies
We know they borrow works that are protected as can be
So we skip right to the third part – is the copying substantial?
Does it take the core, the heart, or it merely incidental?

You said the test had four parts?

The fourth part says to look at how the market has reacted
is the value of the first work down or adversely impacted
if people find the new work an effective substitution
Then a court may find the market is in danger of dilution

How do the four parts relate to each other?

It’s like eye of newt and toe of bat and cooking up a potion
It all depends on who’s the judge and how they take a notion
It’s easier to cure a cold than say what will be legal
I want to curse the Court with a hemmoragic fever

Speaking in technical legalese, Acuff-Rose makes as much sense as fleas
It’s not enough to merely satirize; you must have the original in your sights
It’s stupid but the court has taken a position
You cannot use the first work just to get attention
I want the law to let me use the fair use doctrine
Oh god I think I’m gonna need some oxycontin

So what does that mean for your song?

Well Seanan’s song is all about the source of a contagion
This one’s all about avoiding fair use litigation
They both may be about a plague and how it’s a disaster
But to be legal I’m just gonna have to ask her

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