Now, that we have an understanding of fair use, I was involved in is, is the Dixie Chicks. They have a song called "Sin Wagon", and that song was a big hit single. It's a story of a young woman who's been in an abusive relationship, finally breaks out of it, and wants to make up for lost time and have a lot of fun, and she really wants to get wild. She talks about mattress dancing, and she even repeats, "That's right, I said mattress dancing." Just to get that known. She's thrown down her 12 ounces of nutrition, chugging beers, and having a wild time. Put a red dress on. So, if you think about the overall point of this, she's going to really enjoy her life on earth, but she says, "When I get to heaven, please Lord, please forgive me." So, she's in a situation where life on earth is phenomenal, and she fears that life in heaven. Now, there's a song called "I'll Fly Away" written by Albert Brumley, in maybe 1930. It's an old song. It's under copyright. The point of the song is to say that life on earth is dreary and awful. It's a prison, I want to leave, and I love life above, I want to meet my savior. So, if you think about it, it's the exact opposite of Sin Wagon. Sin Wagon is life on earth is so much fun, I fear the afterlife, and in "I'll Fly Away", life on earth is terrible and I love the afterlife. So, this really sets itself up for parody. So, what the Dixie Chicks did is they wanted to use "I'll Fly Away" in a comic means to create parody, and parody means comment, criticize, or ridicule something. So, if you want to do a parody of something, you take from that song, for example, in this case, a song, you take the lyrics out and you cast it back at the song to comment, criticize, or ridicule it. So, their "I'll Fly Away", they were saying, "I'll fly away" like, "Oh, that's the sweet life", that Brumley talks about and where ruckus in raising health and just living differently. They took only three words, "I'll Fly Away", the musical excerpts it's on two pitches, five, three and five. Very simple, that's all it is, lasting 2.5 seconds, and they got sued. Those three words is almost three years of litigation and legal stuff, it was a lot of trouble. We were hoping then, how is the Dixie Chicks expert witness? We're expecting to go to court. There was depositions, there was all the steps of the trial. But in the end, it got settled. But that's where a court would decide, is taking three words from a song, and less than three seconds of music is that infringing copyright? We thought, "No", because another thing about copyright law and fair use, and fair use includes parody, and parody is legal. Parody is taking the first amendment and sticking that in the middle of copyright law, and the First Amendment wins, it's more important. We have the right to free speech and that means to comment, criticize, or ridicule, we have that right. So, that will supersede and beat copyright law. With the Dixie Chicks, copying of the words I'll fly away and then the lawsuit from Brumley, it might be informative to just kind of look at in some detail from both sides from the viewpoint of the plaintiffs who think it's infringement. When the Dixie Chicks took I'll Fly Away from the viewpoint of Brumley, maybe they're not taking much but, they're taking the substantial part of it. Also, their use is for profit. The Dixie Chicks will not do this for educational reasons or they weren't doing it to give away, they're doing it to make money. When it comes to the effect on the market, the Dixie Chicks might have the better argument because this song is a pretty much rock song with some country instruments, but it's loud it's forceful. It's not what you'd hear in a normal Southern Baptist Church, where you'd have a chorus singing it and instrument and be enlightened, a much different style in nature. So, to go through the four fair use factors, the Dixie Chicks lose on the first one, because they're doing it for profit. On the second one, what are they taking? Are they taking facts? No, they're taking creative expression. The Dixie Chicks lose on number two. On the third one, the amount they're taking? Well obviously, it's very, very little, we had to take less. The substantiality of it? It is the course. But again, it's a short course, it's only two different pitches. So, that kind of goes either way. On the fourth factor, it won't affect the market for I'll Fly Away at all, because it wouldn't hurt the sale. There had been over a thousand recordings of I'll Fly Away, and no one would say, Well, I don't need to hear it, because I'll buy sin wagon, a nasty secular song that's anti-religious and anti the message of I'll fly away. That's not going to be a substitute. So, it won't have an effect on the market. A final thing to really consider is, this parody. I think this is probably the perfect example of parody. Because parody according to the Supreme Court, when you take from someone's work to do a parody, you have to take from the heart of the song, like the essence of the song you have to take. Because the listener has to be reminded and told what is a song about. Well, if you're going to parody I'll fly away, take I'll fly away out. So according to the Supreme Court ruling on a previous case involving parody, the Dixie Chicks would certainly win, because they took as little material as possible. Going on to other cases or other potential matters, the Beatles famous song one of their first hits "Where She Loves You", and it opens and closes with, "She loves you, yeah, yeah, yeah. She loves you, yeah, yeah, yeah." Then the last time they say, "Yeah, yeah, yeah. " they say it four times, "Yeah, yeah, yeah, yeah." That becomes how they do the intro. It's the end of the intro for the verse, and at the very end of the song, they do that again, "Yeah, yeah, yeah", four times. It's very well-known, and associated with the Beatles. Joe Duffy, a country musician, country star, certainly in the 90s he was. He wrote a song called, and performed it, called bigger than the Beatles. The song is about a guy and a woman, working at a Holiday Inn near Los Angeles it seems, and they both want to be stars. So, he's doing what he can to sing it in a lounge, a hotel lounge, and she's serving tables, and they start to notice each other, and they're imagining a love together. He goes on to describe the Love It's going to soar higher than the eagles, and each sets throw different bands, names in his reference. But at one point, he says, they're going to be bigger than the Beatles, that's his dream. So, what he does at the end of the song for over 30 seconds, they'll have this fan come in who sound identical to the Beatles, and they're saying, "Yeah, yeah, yeah, yeah." They'll say that for five or six times for 30 seconds, and the question is, is that fair use or not? So, to go through an analysis of that, first, "Yeah, yeah, yeah", four times. Saying yeah four times. Well, yeah is not original to the Beatles. That yeah. The informal version of yes, I guess it is. That happened before. Doing it four times it seems like it's the Beatles, but it's on the same pitches as the Beatles. The exact same 8,7,6,5, those pitches. So, you're using an unoriginal word yeah, but you're using it the way the Beatles did. If you stated it once, that four-note melody in four yes to sound just like him, same key, same pitches, same rhythm, is that fair use if you do it once? It probably is, but they did a four or five times. So, this 30 seconds of direct copying of the Beatles. Because they want to get that message across bigger than the Beatles. So to go through that, would you consider that to be fair use or not? The first thing is to say, is it a replacement, factor four? Will it replace the song? Will it hurt the song, The Beatles song, "She Loves You"? I don't think it would at all. It's just a different song, different audience. You go to the first thing, is it for profit or is it educational? Well, of course it's for profit. So, the Beatles win on the first factor. The second factor, what's being taken, is it factual or is it non-factual and fiction? Well, it's fiction. It's creative. So, the Beatles win on the first two. Joe Duffy's doing it for profit, Joe Duffy is taking original expression. The third factor, the amount and substantiality, you could say, "Yeah", taking one of those. Of course that's nothing, but he took four of them, but then he states it about five times. So on the amount, perhaps that's getting now to favor the Beatles. The substantiality of it, you could argue both ways. You could say, it's yeah repeated is not original, it was done before the Beatles, but with those pitches, it's the Beatles. So how would you interpret that? I can see the argument for both of them, and the final factor again as I said, the market for it would not be affected. As far as I know, there was no litigation about that, and it's something that I encourage everyone to play that. To play She Loves You by the Beatles and then play bigger than the Beatles by Joe Duffy.
