'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 ...com[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.