People can be terribly clever sometimes.  Take the Holderness Family, for example.  Apparently, mom was too busy running triathlons to sit down and write out a family newsletter, so the family made up a rap to the music of “Miami,” by Will Smith, and made the cutest video, which has now, of course gone viral (Dad’s a news anchor, which gives him a little bit of an unfair advantage, in case you were feeling suddenly inadequate about your holiday preparation skills…):

Super cute. But not a parody.

If you’re an ancient Greek and your understanding of the word parodeia is “song sung alongside another,” then these new lyrics to Will Smith’s composition would probably qualify.  But the definition has changed over time and through the formation of the English language, which is the one we care about for purposes of American copyright law.

I am jumping to the issue of whether the Christmas Jammies song is a parody because if it isn’t, then what the Holdernesses did with Will Smith’s song isn’t fair use. (There’s no category of fair use for writing new lyrics to pre-existing music unless it’s a parody).  And if it isn’t fair use, then it’s copyright infringement.

The definition that we work with these days is narrower then the one the Greeks understood.  The Supreme Court (in the famous parody case of Acuff Rose v. Campbell over 2 Live Crew’s version of Roy Orbison’s Pretty Woman) said it this way:

the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.. . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish).

“Christmas Jammies” rhymes so well with “Miami,”   it probably made it easier to write the rap. But this is a family in the middle of suburban American talking about their suburban kids’  ridiculous overachievements. How much of a comment is it on the high-rolling and ethnically diverse South Beach, Florida, that Smith portrays in “Miami”?***  How many other rap songs could have served the same purpose, and would the piece have been any different if the beats underlying it had been original?

*** In 21st century America, it’s probably not a great idea for a white suburban family to mock the “Spanish, Hatian, Indian, Jamaican, Black” community of Miami. If this family gets sued, they might want to be careful arguing that this was a parody.

Contrast this with the ongoing dispute between Goldieblox and the Beastie Boys over the re-write of the overtly misogynistic song “Girls” in a commercial for toys to promote math and engineering to girls.  The re-write turned the original song on its head.  As the girls in the commercial follow a Rube Goldberg contraption through a house* and out onto a sidewalk, they sing:

Girls – to build a spaceship

Girls – to code the new app

Girls – to grow up knowing

That they can engineer that

The original couldn’t be more opposite:

Girls – to do the dishes

Girls – to clean up my room

Girls – to do the laundry

Girls – and in the bathroom

The re-write kind of brings home the point, doesn’t it?  That’s parody.  So says the Supreme Court.

So the take-away?  Think about the point of using the underlying song.  Is it just so people will like your video and 12 million people will watch it?  Could you have gotten the same effect with different music?  If so, your use probably isn’t fair.**

* I’d show you the Goldieblox video but it’s been taken down pending a lawsuit with the Beastie Boys.  No one seems to be arguing whether the song is a parody – the question seems to be whether or not fair use can be applied to advertisements. Given that in the Acuff case, the question the Supreme Court answered in the affirmative was whether 2 Live Crew’s commercial parody could be a fair use, we here at Aaron | Sanders are thinking that the Beastie Boys should go back to the days ofDon’t Play No Games That I  Can’t Win.”

** Incidentally, Weird Al Yankovich’s songs probably don’t qualify as parodies for purposes of fair use either. And anyway, he gets licenses for all his songs.