In April 2014, Esquire.com published Start a Band, an article by Tom Junod featuring yours truly. Upon opening the article, you’ll find a sound clip at the top called ‘Folsom’, a 50-second promo jingle for our little band, Cousin Billy, using the music – verbatim – though not the lyrics of ‘Folsom Prison Blues’, the Johnny Cash classic. Did Cousin Billy (and the much deeper pocket of Esquire/Hearst Publications) infringe Johnny Cash’s copyright interest in the song? Speaking for Cousin Billy, we sure hope not! But careful legal analysis shows that the jingle would be considered a parody of the original and thus excepted from infringement under the Fair Use doctrine.
The Copyright statute provides a framework of analysis to determine Fair Use by weighing and balancing the following four factors:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The Supreme Court explicitly recognized parody as a form of criticism or comment, and thus permitted as Fair Use, in Campbell v. Acuff-Rose Music, Inc. (hereafter “Acuff-Rose”), where the Court reviewed a case involving 2 Live Crew’s song, ‘Pretty Woman’, a send-up of the Roy Orbison original, ‘Oh, Pretty Woman.’ The following analysis conclusively exonerates Cousin Billy (together with Esquire magazine and its publisher, Hearst Publications).
Pursuant to the first factor of the Fair Use test, Cousin Billy’s use of ‘Folsom’ is certainly commercial in nature – Esquire used the jingle to promote the article and sales of the magazine, and Cousin Billy certainly hoped to benefit from that commercial promotion. However, courts will consider whether the new work ‘transforms’ the purpose or function of the original as compared to the purpose or function of the new work. Parody often transforms the original by adding new expression and meaning to the original work. With ‘Folsom’, Cousin Billy skewers the original with lyrics that mock the grave circumstances of the narrator in the original version who “ain’t seen the sunshine in I don’t know when” and who’s “stuck in Folsom prison, and time keeps draggin’ on.” Cousin Billy wants the reader to read about Cousin Billy in the e-pages of one of the country’s more prestigious magazines, a place very “far from Folsom prison.” In this way, Cousin Billy implicitly comments on the vast gulf between a convicted murderer’s lot and that of a fledgling band looking for some publicity, thus transforming the original version. Justice Souter in Acuff-Rose noted that the threshold question in a parody fair-use defense “is whether a parodic character may reasonably be perceived. * * * It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.” Cousin Billy has the edge in this factor.
The nature of the copyrighted work, the second factor, is intended to recognize that some types of work deserve more protection than others. Generally, a “creative” or “expressive” work such as music, which is created to entertain, is given greater protection than an “informational” work, which is designed to inform or educate. ‘Folsom Prison Blues’ is obviously a “creative” work, and not “informational.” The Acuff-Rose Court determined that this factor is not helpful in the analysis since a parody by its nature would only be based upon a “creative” or “expressive” work.
Regarding the third factor (the amount and substantiality of the use), Cousin Billy has appropriated the music (though none of the lyrics) to the entire first verse – including the memorable opening guitar hook – which would likely be considered substantial in the context of the whole. In Acuff-Rose, the Court fell back to the “conjure up” test that would find no Fair Use under this factor only when the parodist “has appropriated a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of the [parody].” While the traditional interpretation of this third factor would weigh against an infringer when the heart of the original work has been copied, for an effective parody it is the heart of the original that “most readily conjures up the song for the parody, and it is the heart at which parody takes aim.” For Cousin Billy, the critical analysis revolves around whether the quality and value of the material copied is “reasonable” in relation to the purpose of the copying. Could Cousin Billy have used a smaller segment of the original song? That’s doubtful, because to give the full effect to the skewer, Cousin Billy had to take the listener through the first verse of the original song. Cousin Billy wins the third factor.
The final factor – the effect upon the potential market for or value of the copyrighted work – also falls squarely in favor of Cousin Billy. The various courts have described a standard of finding a work to be infringing – and outside of Fair Use – if the unauthorized use diminishes or negatively impacts the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work. In Acuff-Rose, the Court punted this issue back to the trial court for evidence of the market impact of the 2 Live Crew song upon the original version. As much as I enjoy Cousin Billy’s spoof of ‘Folsom Prison Blues’, we have no illusion that anybody in the entire world would choose to purchase the Cousin Billy ‘take’ on the song instead of the original work by Johnny Cash. This factor weighs heavily in favor of the Cousins.
Parody has a long and sometimes hilarious history in American arts and letters and is entitled to Fair Use protection. Cousin Billy is proud to have contributed to this rich tradition. Hey, Cash Estate: Bring it on!