Fair Use "Holding Out For A Hero"

by Tamera H. Bennettposted on October 27, 2008

The Rev. Fred Phelps' church, known nationwide for picketing funerals of soldiers killed in combat, has been accused again of violating copyright laws, this time with an Internet video parody of the song "Holding Out for a Hero."

Sony/ATV Music Publishing in New York City wrote Phelps this week, telling him to stop what it called unauthorized use of the song, featured in the 1984 film "Footloose." Westboro Baptist Church's parody is "There Are No Heroes."

"We're serious about any unauthorized use of copyright material," Peter Brodsky, Sony's executive vice president for business and legal affairs, said Friday.

Fair use is always such an interesting defense. Folks often forget it is a defense and not a right. That means as a defendant you have to "defend" your decision to not request a license for the derivative work you created or to move forward if a license was denied.

In a parody defense, the new work created must parody the work it is based upon or borrows from. So all those great Weird Al Yankovic songs did not make fun of the song, they made fun of something else. Weird Al secured licenses for those songs he did not rest on a parody defense.

Whether or not what Phelps' church created is a parody is a question of fact.