Can I use parody songs in my ad campaign?

October 23, 2012

Dear Music Lawyer,

We are thinking of doing parody versions of songs (completely changing the lyrics) and re-creating the music (to resemble the original as closely as possible) for a YouTube-based advertising campaign.

We are wondering, as we are re-creating/re-recording the music and changing the lyrics (although keeping the original harmonies/melodies), will we run in to copyright issues? If so, if we change it so that he song is ALMOST the same, but not identical, will that save us?!

—Edd

Dear Edd,

Your question raises several complicated legal issues (namely fair use and derivative works) that I will attempt to touch on. However, I urge you to consult your own attorney on the specifics of what you plan to create to develop an appropriate course of action.

As an initial matter, creating song parodies can be a tricky area to navigate because there's a general misconception that simply because one changes the lyrics of a song to "be funny," that person has created a song parody. And people love to create "parodies" because they have heard that parodies are protected free speech and/or fair use and thus they don't have to get permission from the copyright holder in the original song to create and release said parody.

While it's true that creating a musical parody may not require permission from the copyright holder of the original song, with the prime case on this point involving 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Women," to create a true parody (i.e., one that will bolster your claim of fair use should you be charged with copyright infringement), you must be changing the lyrics for the purpose of commenting on the original work. In other words, you must not be using the "parodied" song simply because it has a catchy melody and the right number of syllables in the chorus.

Further, because you said you wish to create musical parodies as part of an advertising campaign, I would be even more cautious about moving forward without permission from the copyright holder of the original song based on your own "parody" classification, especially if you are using popular songs. Many songwriters are particularly protective of the products with which they are associated and may not take kindly to their music being converted into a jingle for baby wipes.

Setting aside the "parody" issue, when you change the lyrics to a song, you are creating what's known as a "derivative work" under U.S. copyright law. That is, the song with the new lyrics is derivative of the original song. As mentioned in previous posts, the right to prepare derivative works is one of the exclusive rights of the copyright holder. This is what allows a book author to control, for example, who has the rights to turn their book into a motion picture (the movie being derivative of the book).

As a result, you would need to find and contact the copyright holder of the original song (normally a music publisher) to seek permission to alter the song and use it in your advertising campaign. If the song will be accompanied by visuals (as I suspect it will on YouTube), then you should make sure that whatever license you are able to negotiate includes the synchronization right. (Recall that the synchronization right allows you to sync up audio and visual.) Bear in mind that the copyright holder is not required to grant you permission to create derivative works.

Bottom line: Courts (and lawyers!) often struggle in parody cases to determine whether to classify as fair use (no permission needed) or a derivative work (permission needed) by using multi-factor balancing tests. There are no bright line rules here so proceed with caution.

—Amy E. Mitchell