Copyright and Comedy

by: Lindsay Harbers

What happens when you combine a comedian, a president, a global quarantine, and a social media platform? You get a viral video series from comedian Sarah Cooper. Lip syncing to audio recordings, Cooper has been making millions of people laugh all over the internet by making comedic use of Donald Trump’s presidential addresses. It’s intended for a laugh, but could it create copyright issues?

In one video, President Trump is standing at a podium, addressing a crowd. In another video, a woman, dressed in a suit, makes funny faces before ultimately falling off an office chair. Both videos share the same audio clip. For the most part, copyright surrounding lip-synching on social media platforms is quite clear. You must obtain permission from the copyright owner before sharing your videos publicly. And yet Sarah Cooper continues to make videos…Why is that?

@whatchugotformeHow to more cases than anybody in the world
♬ original sound – whatchugotforme

The platform Tik Tok (of which Cooper uses) has found a creative way to allow users to lip-sync music by partnering with Merlin, a licensing organization for independent music. In March of 2020, Tik Tok also signed temporary licensing agreements with leading music publishers Sony, Warner, and Universal. These agreements allow Tik Tok users to lip-sync music that is included in these licensing agreements. Otherwise, the platform does not allow any content that infringes copyright. Any use of copyrighted content without proper authorization or legally valid reason may lead to a violation. So how do speeches play into Tik Tok’s copyright agreements?

In Cooper’s case, she is protected not by licensing agreements, but perhaps by what is known as “fair use.” You see, while, the text of speeches written and given by employees of the federal government (such as the President) fall under public domain, audio recordings of these speeches almost certainly do not. In addition to Tik Tok’s policy, news distributors such as CNN have similar copyright policies. CNN specifically states,

“The Site contains copyrighted material […] including, but not limited to, text, software, photos, video, graphics, music, and sound, […] You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part…”

However, the fair use policy should play in her favour. This policy creates exceptions to copyright laws by permitting the use of copyrighted materials for the purpose of parody without obtaining permission from the copyright owner. A fair use defense can be invoked if the author can argue that the piece falls under the definition of “parody” which is “a work that imitates with deliberate exaggeration for comedic effect.” Cooper’s videos certainly seem to qualify. In order to be effective, the parody must draw considerably from the source material. This is why, if litigated, judges typically permit more extensive use, unlike other forms of fair use. In light of this, it is unlikely that Cooper will be removed from Tik Tok or any other social media platform. She was, however, blocked by President Trump on Twitter.

In the age of social media and the internet, there is a wealth of material available to you for inspiration, just be sure that whatever way you wish to express your creativity, that you are respecting copyright before you share.

In addition to Tik Tok, you can find Sarah’s videos on YouTube and Twitter.

Authors: This article was written collectively by a few of our IP strategy experts: Natalie Giroux, Managing Director; Sheema Khan, IP Strategist; and Lindsay Harbers.

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