Disney is doing Wizard of Oz (or, Oz the Great and Powerful), which it is totally cool to do under copyright because the Baum books were published pre-1923 and are thus in the United States public domain. It’s just a little frustrating because Disney has made a habit of profiting from the public domain and then fencing it in, so no one else can do the same.
So in celebration or horror, I wanted to pass on two parodies of public domain fairy tales which could also be violations of Disney’s copyright on the movies it made of those public domain fairy tales. My copyright analysis is incomplete, so if anyone wants to pop in with better ideas, I’m open to it.
To get started, this music video from German Death Metal band Rammstein, for the song “Sonne”. Here’s a translation of the chorus, to keep it interesting:
|Eins: hier kommt die Sonne
Zwei: hier kommt die Sonne
Drei: sie ist der hellste Stern von allen
Vier: hier kommt die Sonne
|One: here comes the sun
Two: here comes the sun
Three: she´s the brightest star of all
Four: here comes the sun
Which is a parody of:
To receive the protection of the fair use doctrine, a work must first be found to infringe on the copyright of another work. To do so, the infringed work must have a valid copyright, the infringing work must show a substantial similarity to the infringed work and the creator of the infringing work must have had access to the violated work.
Assuming Disney has a valid copyright on the expression of its 1937 Snow White movie (though it has no right to exclusive use of the plot, as it is in the public domain), to show Rammstein’s video violated Disney’s copyright I would have to prove it had a substantial similarity to Disney’s work.
That it shares settings (small houses, a mine, a glass coffin), themes (a woman who falls into a deep sleep, men who care for her, platonic love for a single woman from a group of small men), and plots (woman meets 7 small men, they care for her, she falls into a deep sleep) is not enough to show substantial similarity since the Disney film shares these settings, themes and plots with the public domain fairy tale.
But, that the Snow White in the Rammstein video is dressed in a nearly identical outfit to Disney’s princess could arguably be a substantial similarity, as could the fact that the dwarves are singing (as neither the pastel clothing nor musicality of the dwarves are elements of the public domain fairy tale). As in all copyright cases, it would depend on the judge and the skill of the arguments of the lawyers on either side.
(There might be a separate trademark claim, but I don’t know enough about Disney’s trademarking of its vision of the fairy tale princesses to guess on that one).
For the sake of fun, let’s say someone successfully argues that the Rammstein video violates Disney’s copyright. To receive protection as a parody, the video would have to do well under the four factor test for the fair use doctrine.
I’m not going to go through the entire thing, but do want to say that this video does well on the requirement that a parody comment directly on the work being parodied rather than the culture which that work arose from. The Rammstein video, to my eye, criticizes Disney’s elevation of female purity by making Snow White sexual and also a substance abuser. Because the substantial similarity analysis for the next parody is much the same–the settings, themes, and plots are public domain and so not subject to copyright, but the musicality and costumes are–I won’t repeat it in detail.
There could be three separate copyright violation claims from Disney towards the next video: one for the musicality/costumes, one for the lyrics, one for the tune (and I suppose one for the choreography, since it probably has as good a claim to copyright as anything else Disney makes).
Here’s the parody (NB: this parody is problematic on the same level as the Chapelle Show. You’ve been warned):
And the Disney version:
I have a fairly permissive approach to guessing whether something would be found to be parody and therefore protected by the fair use doctrine, so I think both of these videos are parodies and protected by the fair use doctrine. But others, particularly others with law degrees and mountains of angry money, may disagree.
“Fair use is the right to hire a lawyer.”–Lawrence Lessig