Sunday, June 13, 2010

'We Con the World' video kerfuffle: When Middle East politics meets the parody/satire divide

What do you get when you mix Middle East politics with ignorance of copyright law? Utter nonsense claiming that YouTube and Warner/Chappell Music have "censored" a pro-Israel music video -- a video that is very likely infringing.

The kerfuffle involves a video called "We Con the World" produced for Latma, a "media satire website" edited by journalist Caroline Glick. The video uses the tune from "We are the World" but substitutes a new set of lyrics mocking the supposedly "humanitarian" mission of the Gaza flotilla. Music publisher Warner/Chappell apparently sent DMCA takedown notices to YouTube, which removed some (though not all) copies of the video.

Now the pro-Israel and conservative blogosphere is up in arms, claiming that this incident is an example of "Israel's enemies ... trying to silence us," and "YouTube[ing] down against the Israeli side in its editorial decisions," and even "a blatant act of Jew-hatred." Utter and complete nonsense. First of all, YouTube -- with extremely rare exceptions -- simply removes videos upon receipt of facially valid DMCA notices, no questions asked, and no legal analysis performed. YouTube -- which receives a very large volume of DMCA notices -- doesn't evaluate the political content of videos when acting on infringement notices; it simply removes the videos. And do these people attacking YouTube seriously believe that a company whose parent was founded by Sergey Brin and Larry Page (both Jewish), and a music publishing company whose parent is run by Edgar Bronfman, Jr. (son of a former president of the World Jewish Congress), were motivated by anti-Israel bias or "Jew Hatred"? Seriously?

Moreover, defenders of the video are wrong on the law. Glick insists that the video is a "parody" and says:
Copyright experts we advised with before posting the song told us in no uncertain terms that we were within our rights to use the song because we did so in accordance with the Fair Use Doctrine. The Fair Use Doctrine, copied and pasted below from the US Copyright Office stipulates that it is legal and permissible to use copyrighted material under the fair use doctrine for purposes of parody.
Glick doesn't identify the "copyright experts" with whom she consulted, but I'd be surprised if anyone truly expert in US copyright law and fair use would advise, as Glick says, that Latma's use was "clearly lawful." She and others can call "We Con the World" a "parody" until they are blue in the face, but under the Supreme Court's opinion in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), it almost certainly isn't. Campbell distinguished between "parody" and "satire" as follows:
For the purposes of copyright law, the nub of the definitions, and 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. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). 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), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.
(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. I think a court would most likely find that , under Campbell, the "We Con the World" video is a satire -- not a parody. It uses the "We are the World" composition to comment on the Gaza flotilla, "to get attention or to avoid the drudgery in working up something fresh"; any claim that it's actually commenting on the original song is weak at best. (It's not as if Israelis can't come up with catchy yet bellicose songs on their own; this ditty has been stuck in my mind since the 2006 Lebanon War.) The recent (still tentative) ruling in the Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley's songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore's argument that the use of Henley's songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn't exactly say, "If it's a parody, it's fair use; if it's a satire, it isn't." But that's how such cases usually play out.)

Glick and others are right on one thing, however: it's hard for any copyright owner to effectively scrub the Web of all copies of an allegedly infringing work. Others have re-posted the Latma video, and it's going to be tough for Warner/Chappell to chase down every last copy.


  1. The Latma video was actually a good parody of the sanctimonious attitude of the original We Are the World. It spoofed the artists and their self-regarding public.
    So given the association of useful media and artistic idots -- not to mention the above mentioned narcissistic public -- with the "Palestinian cause," for me the Latma piece worked well as both parody AND satire.

  2. @Peter B:

    Defendants in these cases often make similar arguments. Here's how the Ninth Circuit dealt with an almost identical one in Dr. Seuss Enterprises, LP v. Penguin Books, 109 F. 3d 1394 (9th Cir. 1996):

    In their Opening Brief, Penguin and Dove characterize The Cat NOT in the Hat! ("Parody") as follows:

    The Parody is a commentary about the events surrounding the Brown/Goldman murders and the O.J. Simpson trial, in the form of a Dr. Seuss parody that transposes the childish style and moral content of the classic works of Dr. Seuss to the world of adult concerns. The Parody's author felt that, by evoking the world of The Cat in the Hat, he could: (1) comment on the mix of frivolousness and moral gravity that characterized the culture's reaction to the events surrounding the Brown/Goldman murders, (2) parody the mix of whimsy and moral dilemma created by Seuss works such as The Cat in the Hat in a way that implied that the work was too limited to conceive the possibility of a real trickster "cat" who creates mayhem along with his friends Thing 1 and Thing 2, and then 1403*1403 magically cleans it up at the end, leaving a moral dilemma in his wake.

    We completely agree with the district court that Penguin and Dove's fair use defense is "pure shtick" and that their post-hoc characterization of the work is "completely unconvincing."

  3. Hi Ben,
    This post you have made is excellent. I am sure you are aware that the video done by Latma has been uploaded on other video hosting sites and that across the blogosphere people are jumping on Carolyn Glick's bandwagon that she has been censored. I see you are Senior Council at NBC. Are you aware that the song has been remade to raise funds for Haiti-We Are the World Foundation, which obviously obtained permission and Lionel Richie and Quincy Jones are both on the board?

    Now for this.... a PARODY of the song done on SNL, an NBC program

    Perhaps the upload of that clip from SNL is illegal, perhaps, but would you care to comment to compare the use of the song on SNL as opposed to Latma's use and Carolyn Glick's claims? Thank you

  4. Hi again Ben,
    There's another thing that needs clarifying. Warner does not hold the copyright to the song, they are the agent. The actual studio recording of the song is copyrighted to

    Type of Work: Sound Recording
    Registration Number / Date: SR0000069706 / 1985-11-07
    Supplement to: SR0000061619 / 1985
    Title: We are the world. By United Support of Artists for Africa.
    Copyright Claimant: United Support of Artists for Africa
    Date of Publication: 4Mar85 (on original appl.: 1Apr85)
    Previous Registration: Prev. pub. sounds: side B, "Grace" (on original appl.: prev. pub. composition)
    Basis of Claim: New Matter: "all new sounds--side A."
    Supplement to Registration: SR 61-619, 1985
    Variant title: We are the world
    Names: United Support of Artists for Africa

    Richie with Michael Jackson wrote the song and I'm having a hard time finding if they actually copyrighted it themselves and then licensed it for use to United Support of Artists for Africa for the studio recording or that they just had it copyrighted by them.

    Warner doesn't have a choice in this matter. As the agent they have to protect the copyright of their client (I don't know if that is the correct legal term)-but what I'm trying to say is it goes further to the proof that Warner isn't taking it down due to the nature of the video and censorship, but that they are entrusted to protect the copyright,

    OH wait I found it

    Type of Work: Sound Recording
    Registration Number / Date: SR0000061619 / 1985-04-24
    Supplemented by: SR0000069706 / 1985-11-07
    Title: We are the world / M[ichael] Jackson, L[ionel] Richie ; [performed by] U S A for Africa.
    Appears in: We are the world. Columbia USA 40043, c1985. 1 sound disc : 33 1/3 rpm ; 12 in. side 1, band 1
    Publisher Number: Columbia USA 40043
    Copyright Claimant: United Support of Artists for Africa
    Date of Creation: 1985
    Date of Publication: 1985-04-01
    Authorship on Application: sound recording: United Support of Artists for Africa d.b.a. U S A for Africa, employer for hire.
    Basis of Claim: New Matter: sound recording of prev. pub. composition.
    Copyright Note: See also We are the world; Reg. 7Nov85; SR 69-706
    Names: Jackson, Michael
    Richie, Lionel
    United Support of Artists for Africa
    USA for Africa.

    Here's a complete list of all their copyrights

  5. @Robin:

    The info you cite is about the sound recording. The sound recording is not relevant to this takedown, which was based on an alleged infringement of the musical composition, which is a separate copyright.

  6. Hi Ben, I know, that's why I am still looking for the song copyright itself. The web is littered with articles about this but yesterday I found that the song was copyrighted to Jackson and Richie.

    Also, since the song is currently being used in new form to raise money for Haiti (licensed to the new foundation at which Lionel Richie sits on the board) , a registered non-profit, wouldn't the use by Glick have a negative affect on their fund-raising abilities possibly? I'm thinking here of the recent case of Hebrew University suing GM over their trademark copyright for Einstein. In that case the agent here in the US who is responsible for licensing and protecting the HU's copyright is GreenLight LLC- a subsidiary of Corbis owned by Bill Gates. If you read the suit, HU is saying the GM use under the Lanham Act damages their image and can cause financial harm to them since Einstein brings in more money to HU than anything else.

  7. corection, I realize the Lanham Act is unfair business practices so the parallel isn't completely there because Latma didn't produce the video for profit whereas GM used Einstein in an ad. But still, is there a legal argument that Latma's video could harm the fund raising abilities of the new foundation for Haiti using the song?

  8. Found it, a wiki article concerning the remake of the song for the new foundation for Haiti

  9. To support Peter B's point above, you may want to look at the Abilene case from SDNY at 67 USPQ2d 1356.

  10. Good post. Certainly, this is not open and shut, but I agree with Peter B that, in the main, this is a parody of "We are the world."

    "We are the World" reflects a philosphy that poor people should be given free goods in order to make their lives better. "We are the ones who make a brighter day so lets start giving" ... "Dylan: It takes more to store the food that to give it."

    But there is an ugly side to all this "giving." As it is often said "it is better to give than to receive." Indeed, celebrities often seem more interest in being seen giving to a cause, then to actually giving real thought to solving the crisits.

    Latma targets this mentality generally, using the aid flotilla as its vehicle.

    Aid to the suffering people in the world's worst regimes may feel good, but it strengthens their leaders and does not serve the ultimate aims of development.

  11. Try searching YouTube for <"We are the world" Parody>. To me, the results weaken the argument that Warner/Chappell is just defending their copyright and makes it look more as if they are being... anti-Israel? wise dhimmis fearful of shariah being enforced against them? calculating that there are lots of Muslim potential customers? We report, you decide.

  12. Interesting, but I find this piece unconvincing. I have no issues with your satire/parody analysis. I totaly agree this one is a satire and not a parody. However, I wonder: why do you think the American laws apply to this case in the first place?

    The place of the wrong (Lex loci delicti) here is not the US but Israel. Hence, the prevailing law should be the Israeli one. Even American case law says so (See Itar-Tass v. Russian Kurier).

    The Israeli law adopted the fair use doctrine, but it did not adopt the distinction between satire and parody. Both of them are considered fair use in Israel.

    So Latma was actually right all along.

  13. @Anonymous 3:23:

    Latma disseminated its video via YouTube, which is based in the US. Seems like a pretty solid basis for US jurisdiction (and choice of law) to me.

  14. @Ben Sheffner 3:36:

    This is your opinion, which may be valid, but for sure it is not as clear-cut as your article presents.

    Actually, YouTube is not situated in the US more than anywhere else it is used in the world. The place of the server is a very artificial criterion, and almost no one uses it today.

  15. @Ben Sheffner 3:36:

    This is your own view, which may be valid, but for sure it is not as clear-cut as your article makes it look like. To the contrary.

    Latma did what they did in Israel. It is more plausible to argue that the "place of the wrong" is Israel than it is to point to the US.

    Besides, why do you think that YouTube, which is an internet site, is located in the US? Just because its servers are situated there (which I'm not sure of)? The old server's criterion was abandoned long ago by most courts, just like you wouldn't say that a telephone call is conducted at the location of the switchboard.

    YouTube is a website which is used all around the world. If a French kid uploads a video he made to YouTube from his own bedroom, it is very arguable to assert that the wrong was made within the US. France is a much more plausible option.

  16. Sometime since June 5 the domain registration for Latma has been set to private. However, on June 5th the following appeared on the domain registration:

    descr: Center for Security Policy RA
    descr: 1901 Pennsylvania Avenue, NW, Suite 201
    descr: Washington, DC
    descr: 20006
    descr: USA
    phone: +001 202 8359077
    e-mail: info AT
    admin-c: LD-SB12052-IL
    tech-c: LD-SB12052-IL
    zone-c: LD-SB12052-IL

    The contact person is Shlomo Blass in Israel, but the domain for Latma was clearly even after the date of the publication of the"we con the world" video was Center for Secure Policy where through Glick solicits all funds to be sent to support Latma.

    Youtube US, domain registered US,

    It is a registered US copyright which extends to international copyright by law which was infringed on by a domain registered IN THE US at least if it has not been changed altogether certainly was registered to a US entity at the time the alleged infringement.

    Latma is an initiative of a US entity, Center for Security Policy,

    In a posting on her Web site on Thursday, Glick called the video “an important Israeli contribution to the discussion of recent events” and referred to Latma as an initiative of the Middle East media project run by the “Center for Security Policy,” a Washington, DC, think tank where she is the senior fellow for Middle Eastern Affairs.

  17. @ Robin 10:22 AM

    When an American does something in Israel - then it is done in Israel. The fact that he is an American person (or entity) does not change the place of the deed he does.

    To the best of my, your & Ben's knowledge, the Latma video was filmes and uploaded in Israel. All these new factual assertions made to support Lex Situs were not part of Ben's original claim. They are excuses in retrospect for an argument which was not fully founded to begin with.

  18. @Anonymous 11:21:

    For the record, I have no idea where the video was shot, and I never asserted otherwise.

    @Anon June 20 4:09 and 4:50:

    Your assertion that "YouTube is not situated in the US more than anywhere else it is used in the world" is bizarre. YouTube is located in San Bruno, CA.

    And I'm not sure what you're referring to by "The old server's criterion was abandoned long ago by most courts. If you have a case saying that the location of a server to which one uploads (and causes dissemination of) copyrighted works is not relevant to determining jurisdiction and the applicability of US law, I'd be interested in seeing it.

  19. @Ben 11:21

    @Ben 11:21

    Since I cannot look for cases right now, you'll have to take my word for it, and I understand if you choose not to.

    However, if you think of it, the "claim" is not bizarre at all. The place of the wrong is the place where the person who does the wrong is situated, whether it is a telephone speaker, an anchor of a radio show, or a YouTube uploaded.

    When you are sitting in your home and, say, extort someone by phone or by chat, you will be put to trial by your country's police under your domestic law. The fact that the electric signals go through a server or a switchboard located in another state (which you don't even know which state when you're using your phone or the internet) does not change the place of the act you have committed, which is where you physically were. If you extort someone from Maryland, than Maryland laws apply. The technical way the cues do from your phone or computer to the other person – through one server or another – is, at most, of secondary importance.

    Anyway, I think you should have checked these questions before you described the Latma claim as ridiculous and utter nonsense.

  20. "If you extort someone from Maryland, than Maryland laws apply." I'm no expert in criminal jurisdiction/choice of law, but I'm pretty sure that if you call and extort someone in CA from MD, then you'd be guilty of extortion in CA.

    I'd also point out that Caroline Glick, who edits the Latma site, defended the video by citing US fair use law, so it's hardly surprising that criticism of her claims would focus on US law as well.

  21. @ Ben Sheffner 12:51 PM
    "I'm pretty sure that if you call and extort someone in CA from MD, then you'd be guilty of extortion in CA."

    As you can see, even you refer only to the place where the real people are situated. Your claim does not assume any significance to the place of the server or the switchboard.

    As to Glick. I now read her article (which is not perfect, but is also not what you made of it). I see that she generally refers to the Fair Use doctrine as allowing Latma to do what it did. She says that copyright experts told her so. They were probably right, as satire is considered fair use in Israel.

    The fact that she later tries to bring some American case law in order to strengthen her argument (while not being aware of the parody/satire distinction) does not change the original true claim she makes. It is only the unnecessary addition at the end which is not accurate.

    And just like you mock her for not being aware of a legal detail like the distinction between satire and parody, so can others mock your article for not being aware of the legal detail of the prevailing law.

  22. LatmaTV's domain is registered to a US entity although they use an Israeli server. It is a fully funded US entity no matter where they are doing their video shooting. However, we're not talking here about their website where it still is up and was never taken down ( , we're talking about YOUTUBE which is only the middleman in the take down notice in question and has an out

    Here is the seminal question, rather than legally responding to Warner's DMCA to Youtube with a counter-notifiction she chose to rally the troops to re-upload it as much as possible. Indeed it has been re-uploaded numerous times to various Youtube channels,

    PLEASE READ the law concerning a counter-notification. The DMCA issuer has a determined amount of time in which to file a suit upon the receipt of a counter-notification, otherwise the host (Youtube) puts it back up again.

    Pray tell, why didn't Ms. Glick and Co. choose this route? Read the take down and put back numbered list. See how easy she could have handled this? She is absolutely sure it is PARODY, let her test her case in legal fashion. Or is it too much to ask of her to abide by the law since she claims she consulted attorneys?

    Is Ms, Glick a damsel in distress or did she create her own distress by not following the law? US law since when in Rome do as the Romans do and Youtube IS a US video hosting site bound by US law,
    If the shoe were on the other foot and Youtube were in Israel then Israeli law would apply to such things wouldn't it?

  23. @ Robin 2:09 PM

    As to your last question, about the relevant law - please see what I already wrote. The quick answer is: "No, the place where the company operating the website is registered or the place where its servers are located are not determinative for the place of the wrong done by someone else who is using the site."

    As to the DMCA procedure - I am aware if it. I am not here to defend Latma's actions. I do not even know whether I subscribe to their ideas. I am surely not the one to explain the route they chose to take. All I am saying is this: the analysis made by Ben lacks a vital legal component, and once you add this component, Ben's basic claim about Latma… well, it is not as strong as he claims. That's all.

  24. "No, the place where the company operating the website is registered or the place where its servers are located are not determinative for the place of the wrong done by someone else who is using the site."

    The "someone else" is the senior fellow for Latma which is an initiative fully funded by a US non-profit organization. Again, there is a legal procedure to responding to a DMCA which is served on a US webhost! If Ms. Glick can't follow the law which applies to the privilege of said use that is her problem as witnessed in her attitude of balking at it completely. If you or anyone else was uploading a video to an Israeli video hosting site then you would follow the laws of Israel would you not? I don't understand what you don't get about this.

    Where the lawsuit would be filed should Warner wish to do so I honestly don't know, whether it would be here or in Israel because yes, the video was produced in Israel.

    Said video has also been uploaded to registered entirely in Israel and to several other youtube channels and blogs-Atlas Shrugs/Pamela Geller is just one. She is certainly based here in the US and although she did not produce the video, she also dared Youtube but really is not daring Youtube, she is challenging Warner, something this group can't get through their heads.

    Now, this link is for Ben, in particular I find everything from the sub-title "moral-rights" down of particular note pertaining to this case.

  25. @Robin 3:30pm

    I think you misread what I wrote. When I was talking about "the place where the company operating the website is registered", I was referring to YouTube, not to Latma. Latma is the "someone else" in this equation.

    Again, the determinative factor is the place where the action was DONE, and not the IDENTITY of the parties. So restating the identity of the parties (and the parties who finance them) does not make your case. The question is not "who is Latma", but "in what country did Latma do the action".

    As for the DMCA procedure: restating it, while completely disregarding my last answer about it, is not an answer. So I repeat: Even if Latma did not use the DMCA procedure (which we don't know, BTW), that does not make Ben's legal analysis about Latma's fair use accurate.

  26. Copyright law comes under the Berne Convention whereby countries come within very close agreement on protection. As you point out, Israeli law concerning parody/satire is looser.

    But clearly under all cases I have found concerning parody in the US, this "we con the world" video does not hold up to that label. Find me just one case that does and I will reconsider my opinion.

    Warner-Chappel is in a pickle though isn't it? Because Glick has not given any indication that they sent a counter-notification, so WC isn't even aware that they need to pursue the issue with dozens of youtube channels now posting it.

    Should they find out and pursue it, then jurisdiction of a suit filed will be important. Contrary to what you think, jurisdiction is cyber law is a whole different animal. Note that Carolyn Glick is a US citizen and Latma is a US entity. In light of that, read the following, in particular "The Territoriality Nexus"

  27. @Robin

    1. Sorry, but you got it wrong. The question here is not about court's jurisdiction. It's about the applicable law. Even if the court is American, the applicable law is still Israeli (See Itar-Tass v. Russian Kurier - an American ruling about this very issue).

    2. You cannot rely on the international conventions here. Both Berne & TRIPs conventions do not allow an open ended standard such as fair use. In that respect, both America & Israel are in violation of the conventions.


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