Re: obscure derivative works question

On 11/7/96, Spectrum Press wrote:
>
> Parenthetically, I have never been comfortable with the parody
> rulings. The gist of it seems to be the courts say parody is fair
> use because it amuses people. So you're allowed to take someone
> else's work and make an amusement as a close derivative, but you are
> not allowed to take that work and provide the audience some other
> emotional experience as a close derivative. I don't understand the
> logic here. You can copy if you make people laugh, but you cannot
> copy if you make people cry. Shades of George Orwell.

There is nothing necessarily funny about parody (disregarding cases where the jokes just fall flat). Parody can be quite serious, and is understood as a form of criticism of or commentary on the original (for example, "West Side Story" taken as a serious parody of "Romeo and Juliet"). I understand the parody cases to recognize that essentially critical function of parody, and adjust copyright claims accordingly so as not to undermine the process whereby science and the useful arts are advanced through that kind of dialogue between an author and his/her audience.

Along a similar line, I have always wondered (not totally disinterestedly, either), what the status under copyright law is of the traditional musical form of theme and variations: if I were a composer (which I am) may I freely use a copyrighted melody as the basis for a set of variations? The same principle, I suppose, applies to the standard jazz practice of improvisations on a popular "cantus firmus." I'm unaware of any case in which the original composer objected, but that may not cut much mustard in this day when the original composer may have no interest in the copyright.

If it's not fair use to write variations on a theme, then presumably the variations work would have no enforceable copyright of its own. Since such works are often of much greater substance than the original tune, that would be about as contrary a result as you could imagine to the ostensible purpose of copyright.

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