Bound 3 – Kanye, Kim, James, and Seth?
Last week, Kanye West released a video for his song “Bound 2,” featuring himself and a nude Kim Kardashian riding a motorcycle. Today, actor/comedians James Franco and Seth Rogen released their own version, “Bound 3.” Bound 3 is an exact copy of the original – the song is identical, most of the shots are direct copies – except Franco appears as Kanye, and a hilariously nude Rogen appears as Kim. Hopefully Kanye and his record label will have a sense of humor about Bound 3, but if they don’t, what can they do about it?
Here’s the original, Bound 2 (NOT SAFE FOR WORK):
And here’s the parody version, Bound 3 (NOT SAFE FOR LIFE, BUT HILARIOUS NONETHELESS):
On to the legal analysis. Section 107 of the U.S. Copryight Act lists four factors to be considered when determining whether a copyright infringement is entitled to a fair use defense:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
It is a settled point of law that parody is a form of expression that is protected under the First Amendment and the fair use defense to claims of copyright infringement. From a blog post I wrote about a Star Wars parody:
In Campbell v. Acuff-Rose Music, Inc., the Supreme Court ruled in favor of the pioneering rap group 2 Live Crew (I’m not going to tell you what they were pioneers in – you can look it up yourself, but make sure there aren’t any kids around) when they were sued by the owners of the copyright for Roy Orbison’s song “Oh, Pretty Woman.” 2 Live Crew had recorded a…colorful…interpretation of the song.
The Court focused on the “transformative” fair use factor cited above, minimizing the impact of the remaining three factors with respect to parody. The second factor – the nature of the copyrighted work – was ignored because parodies often copy expressive, creative works and hardly ever copy functional, informational works. The third factor, the amount and substantiality of taking, was relaxed somewhat. Parodies need to be able to use enough of the original work to make the object of the comment recognizable. The court stated that it may be acceptable to copy the “heart” of the work in a parody because the heart conjures up the ideal of the original. Finally, considering the fourth factor, the effect of the accused use on the potential market for or value of copyrighted work, the Court noted that parodies are unlikely to trigger this factor because a parody is unlikely to act as a substitute for the original work.
In the last year or so, various courts have expanded and liberalized the understanding of what is “transformative” fair use. I think it’s safe to say that, as a whole, the Bound 3 video is transformative of the original – there is certainly some commentary about how strange and ridiculous the Bound 2 video is, and about Ms. Kardashian’s…eccentric…poses and body language.
However, Bound 3 uses the song “Bound 2” without any changes at all. I suspect that, if Kanye was to submit a copyright takedown notice to YouTube, YouTube would probably comply rather than risk violating the Digital Millennium Copyright Act. Historically, YouTube has not been hesitant to take down videos that use pre-existing popular songs as audio soundtracks.
If Kanye was to sue Rogen and Franco, that might be a different story. The outcomes of fair use cases are notoriously hard to predict, but they would have a fairly strong defense against any claim of infringement – especially if they complied with any takedown requests. Of course, their fame, wealth, and the amount of goodwill they enjoy makes their position different from an unknown parodist. If you want to use “Bound 2” or any other popular song as the soundtrack for your own parody video, go ahead – but beware that you might not escape liability as easily as Franco and Rogen probably will.