CAN’T USE PARODY DEFENSE
IN COPYRIGHT CASE
A Florida federal court judge has ruled that the musical group LMFAO can’t invoke the fair use “parody defense” in a copyright case brought by rapper Rick Ross.
LMFAO claimed that its popular song “Party Rock Anthem,” with the chorus “everyday I’m shuffling,” was a parody of Ross’s song “Hustlin” and its tagline “every day I’m hustlin’.”
The LMFAO song sold more than 7.5 million copies in the US alone and was on the top of the Billboard charts for six weeks in 2013.
Ross’s own song was a hit in 2006.
Ross sued LMFAO’s members in December of 2013. He also sued Kia Motors, which used “Party Rock Anthem” in TV commercials featuring giant dancing hamsters.
The judge wrote,
At best, Party Rock Anthem uses Hustlin’ in a humorous way, but in the absence of any directed criticism, comment, or ridicule, this (slight) element of humor is insufficient to support a parody defense.
She was harshly critical of LMFAO for appropriating Ross’s lyric:
It appears that Party Rock Anthem merely uses Hustlin’ ‘to get attention’ or to ‘avoid the drudgery in working up something fresh,’ Defendants’ assertion of parody is an unconvincing post-hoc rationalization.
The “fresh” quote comes from the US Supreme Court case of Campbell v. Acuff-Rose Music, Inc., also known as the “Pretty Woman” case.
In that case, the rap group 2 Live Crew used the Roy Orbison song “Oh, Pretty Woman” as the basis for their own song “Pretty Woman.”
The Supreme Court defined “parody” as a work of authorship that uses:
some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. The key factor in assessing whether a derivative work is a parody is deciding if it is transformative, if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message….”
Although their parody defense failed, the LMFAO members can still contend that their use of Ross’s lyric should be permitted on other grounds – such that the phrase was too short to be subject to copyright protection.
The case is Roberts et al. v. Gordy et al.