Q: I wrote a parody song & I plan to post on YouTube- Fair Use parody question regarding copyrighted photos.
The song is a parody of a popular hip hop song using my lyrics. The video is made up of random pictures, some of which are copyrighted photos of celebrities. From what I understand of Fair Use, is that I would be safe because the video is a parody. Am I understanding this correctly?
A:
No, you are not understanding this correctly.
Generally, all photographs are copyrighted. A photograph does not need to contain the (c) copyright symbol to be copyrighted. I say "generally" only because authors of creative work can give up the rights to their work and photos taken by government employees in the course of their work are not copyright protected. Everything else, created in the past few decades, is almost certainly copyrighted.
Fair use is a defense to a copyright infringement suit. So, even if you think your use qualifies as fair use, the only way that can actually be determined is by a judge, after a lawsuit has been filed.
For parody to weigh in favor of a finding of fair use, the purpose of the use has to be to comment critically on the work you're using. So, the mere fact of creating a parody does not give one free license to use all copyrighted work, or to validly assert the affirmative defense of fair use; the object of the parody must be the infringed-upon work. Using other copyrighted works, incidentally in a parody, is almost certainly still copyright infringement.
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