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Are there any legal impediments to busking a song with melody and lyrics copyrighted in the United States---with the same melody but with different lyrics---on U.S. streets?

Does it matter if the song is to be sung not for money, but to deliver a message; i.e., to make a statement?

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  • Weird Al keep the melody, but replaces the lyrics of the song he's parodying, and he's able to sell his parodies for a profit. He does gets permission from the original songwriters, but AFAIK he does it out of respect, not because he's legally required to do so.
    – alexgbelov
    Nov 14 at 15:21
  • @alexgbelov Exactly. Nov 14 at 15:57
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    @alexgbelov My understanding was that fair use covers using (creating a derivative of) Work A to parody Work A, as part of the freedom to criticise—not using Work A to parody unrelated Work B. When Weird Al copies Nirvana’s song to poke fun at Nirvana in “Smells Like Nirvana”, that’s fair use. When he copies Coolio’s song to poke fun at the Amish in “Amish Paradise”, that’s… murky, at a minimum. Seeking permission is respectful and avoids ever having to get lawyers and judges to weigh in. Nov 14 at 17:02

2 Answers 2

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A song with the same melody and different lyrics is a derivative work. It does not matter whether the song is to be sung for money, or not. The copyright owner still retains the rights to the melody, and can deny anyone permission to use it in a derivative work.

Furthermore, using the derivative song to make a statement does not restrict or reduce the rights of the copyright holder. Refer to Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), below.

See: Derivative work

Derivative works can be created with the permission of the copyright owner or from works in the public domain. (...) The copyright for the derivative work only covers the additions or changes to the original work, not the original itself. The owner of the original work retains control over the work, and in many circumstances can withdraw the license given to someone to create derivative works.

And: Why is parody considered fair use, but satire isn't?

As the Supreme Court explained in Campbell v. Acuff-Rose Music, Inc., “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.”

Also: Mechanical license

Within copyright law within the United states, such mechanical licenses are compulsory; any party may obtain a license without permission of the license holder by paying a set license fee, that as of 2018, was set at 9.1 cents per composition or 1.75 cents per minute of composition, whichever is more, which are to go to the composition copyright holder. (...) In American law, US Code Title 17, Chapter 1, Section 115(a)(2) states: "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." thus preventing mechanical licenses being used to make substantially derivative works of a piece of music. (...) For example: Puff Daddy wants to sample the opening riff from “Every Breath You Take” by The Police. (...) He is free to hire musicians to reproduce the Police's sound, but he cannot copy from any phonorecord with only a mechanical license.

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    Wasn't there some sort of license that you could buy for literally a few dollars that allowed to create derivative works? That is, as long as you didn't use any actual recordings of the original song. I think it was called "technical license" or something like that.
    – Vilx-
    Nov 13 at 11:38
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    @Vilx- Are you thinking of a mechanical license? Nov 13 at 14:15
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    The right to perform the copyrighted work publicly is one of the exclusive rights of the authors, but it a distinct right separate from the exclusive right to make copies and the exclusive right to make derivative works. See for example USA copyright law Title 17 section 106.4 copyright.gov/title17/92chap1.html#106 - in this case, the melody itself is a copyrighted work which has separate rights (and often separate authors) from the lyrics and some recording of the song.
    – Peteris
    Nov 14 at 0:25
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    @Greendrake: The song itself (the sequence of notes) can be copyrighted, separately from a specific recording. If the melody itself is an old folk tune in the public domain (or otherwise old enough to be out of copyright), for example Greensleeves or Scarborough Fair, but famous because of a popular modern recording, as far as I know you can still do pretty much anything you want that doesn't involve sampling / remixing that modern recording. I don't know if imitating something distinctive about the famous recording that wasn't in the original sheet music might be a gray area, IDK. Nov 14 at 2:30
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    This is how it works in the UK. To cover a song live, the venue needs to have a PRS [Performing Right Society] license. That covers unreported performance [so no-one has to keep a tally of exactly which songs were performed there]. A live cover requires no mechanical licence ever; 'mechanicals' are physical copies, records, CDs etc. You do not need to apply for permission/license to perform covers live. If someone changed the lyric of a song they performed, the result would simply be 'unenforceable' at worst. [It would be interesting to know what licenses such as Weird Al Yankovitz needed.]
    – Tetsujin
    Nov 14 at 8:53
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It depends what the different lyrics try to achieve. A parody, according to Merriam-Webster "a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule", falls under the fair use doctrine. This website of a patent and trademark attorney mentions "First Amendment undertones": Obviously, the right to free speech collides with the right of authors to their works, and a fair balance cannot consider the authors' side alone.

Al Yankowic himself also states in his FAQ that he would in principle be allowed to parody other works without the authors' permission but chooses to obtain them out of respect.

But does this law not open a backdoor for mere copycats? How can one define what qualifies as parody? The lawyer's website mentions a simple basic test: Is there a "likelihood of confusion"? An alleged parody which is so similar to the original that it can be confused with it cannot logically be an (actual, effective) parody. This test prevents mere copycats to jump on the bandwagon and illegitimately profit from an author's work without paying the dues.

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