The Saga’s Continued

“Weird” Al Yankovic, one of my favorite artists (yes, artists) of all time, almost just vaulted himself into an even higher echelon of heroics.  In brief, Al had a concept for a spoof of Lady Gaga’s “Born This Way,” which he wanted to include in his upcoming album. As he always does, Al sought permission from the parodied before releasing the song, and even promised that all proceeds from the sale of the song and its subsequent music video going to benefit the Human Rights Campaign (a charity Gaga has supported with her own performance).

I’d like to do a parody of Lady Gaga’s “Born This Way” called “I Perform This Way.” The basic concept is that I, as a Lady Gaga doppelganger of sorts, describe the incredibly extravagant ways in which I perform on stage. Meat dresses and giant eggs would most likely be referenced, but also much more ridiculous made-up examples of bizarre wardrobe and stage production. As with all my parodies, it would be respectful of the artist, while having a bit of fun with her larger-than-life image.

Though most of the artists Al has parodied know that his 30 years of parodies have always been respectful of their target, and would have given their permission at this point, the Gaga camp replied that she would need to hear the song before giving approval.  Al quickly wrote the lyrics, sent them over, but was informed that she would need to hear the actual song.

Hmm. Well, this was mystifying to me. At this point she has the lyrics… and hopefully she is familiar with her own song… and the parody is basically her music… with my lyrics. It really shouldn’t be that hard to decide – based on having the lyrics right in front of you – whether or not you’d be “okay” with a parody. But, alas, we’d been given an ultimatum. If she didn’t hear it, she wouldn’t approve it.

Okay then. I decided – based on my belief that people are basically good – to go through the trouble and considerable expense of actually recording the song. Now, I never do that – never. But because I was really excited about this parody, I decided I would faithfully jump through as many hoops as Gaga deemed necessary.

Al went to the trouble to record the song, as it was holding the release of the rest of his album up, sent it to the Gaga camp, and was informed that Madame Gaga had said no.  At this point, Al decided to release the song anyway, as a free MP3 on his site and on YouTube, thereby taking his case to the public to judge whether or not Al’s work was a protected “fair use,” and therefore excepted from Copyright’s restrictions.

Shortly thereafter, after the flood of internet support swelled behind Al, word came that Lady Gaga herself stepped in and gave the song permission, claiming that her management vetoed the song without even letting her know that Al had made the request.  Whether or not that claim was a fabrication and Gaga’s manager was left to blame, at least Al got his way and his album is a go.  However, even as an ardent Weird Al fan, I am slightly saddened by the last turn in this chain of events.  Lady Gaga, by wisely falling in line with everyone else that has ever granted Al permission to parody their works and failing to sue (and incur the wrath of the Streisand Effect), inadvertently denied the world a wonderful test case for the limits of fair use.

While Gaga would have had some presumption of protection for her song, given that her work is creative and commercial in nature, the rest of the fair use factors would weigh pretty heavily in Al’s favor.  Even though I don’t know the Gaga oeuvre well enough to know how closely the parody follows the music and lyrics of “Born this Way,” it is clear that the lyrics in “Perform this Way” target Gaga’s persona with the highest quality satire and lampooning Al has to offer.  The lyrics are incisive and make light of Gaga’s own techniques as a lyricist, performer, and musician, and therefore have their own critical and creative value, independent of the original.  What’s more, Al is a rare talent that never actually copies the music in his parodies; he reconstructs and rerecords the musical backing for each track so that the instrumentation is all his own.  Finally, it’s utterly implausible that Weird Al’s parody would in any way affect the ultimate market for Gaga’s works; he’s not poaching her fans by offering her “unique” musical compositions to the public under different lyrics.

So, while Weird Al won the battle, we all missed the opportunity to win a much larger war.  Such a test case would have been a slam dunk, and would also be high-profile enough to raise some awareness of the faults of Copyright doctrine.  Perhaps we could have gotten either a judicial or legislative bright-line rule that could be drawn for future parodists to stand up to the likes of Lady Gaga, even if those future parodists don’t have the fan support, funds for litigation, or balls of steel that Weird Al does.  It would be a significant victory for anyone even thinking of producing a parody if the potential for litigation was certainly not a barrier to entry.  Not that Weird Al leaves a whole lot of room in the market for those future parodists.  Maybe that’s why the new album is called Alpocalypse…