While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.24 [emphasis added] 109
Truly, the law can confront and master all cultural forms. The heart of parody as the Supreme Court described it is that one is taking aim at the original. Because 2 Live Crew could be seen as directing their song at Orbison's original, rather than using Orbison's song to make some other political or social point, the court was willing to give it the favorable consideration that parody receives as a fair use. 110
Does "George Bush Doesn't Care About Black People" fit that model? The Legendary K.O. were not "taking aim" at "Gold Digger." True, they quoted West's actual words from the television broadcast (also copyrighted). They even used them as their title. But they were not taking aim at his song. (Ironically, Kanye West has a better claim that he was taking aim at Ray Charles's picture of womanhood, in just the way described in the 2 Live Crew case.) Rather, The Legendary K.O. were using the sample of the song as the backing to an entirely different rap that expressed, in familiar and popular musical form, a more expansive version of his condemnation of both press and president. That does not end the inquiry. Parody is not the only form of protected criticism or commentary. But it makes it much harder for them to succeed, particularly in light of the hostility toward sampling betrayed by both Grand Upright and Bridgeport. 111
The videos made by The Black Lantern and Franklin Lopez present an even more complex set of questions. On top of the music copyright issues, we also have fair use claims for the extensive news footage and footage of Mr. Foxx. The Black Lantern also used some fragments of a popular video by Jib-Jab, which had a cartoon Bush and Kerry singing dueling parodied versions of Woody Guthrie's "This Land." When JibJab's video first came out, the Guthrie estate claimed copyright infringement over the song. Assisted by a number of public interest legal groups, JibJab claimed fair use. (It eventually came out that the copyright over the song was no longer valid.) What did Jib-Jab do when The Black Lantern sampled them in their turn? In a move that both wins the prize for hypocrisy and serves to sum up the intersection of law and culture I have been describing, they sent him a cease and desist letter. The video was taken down for a week and he was eventually forced to remove the segment of their video from his work. Fair use for me, but not for thee. 112