In the spring of 1968, The Mothers of Invention released their third studio album We’re Only in It for the Money. The album contained a blend of music and satire that was already distinctive to the band’s lead songwriter and guitarist, Frank Zappa. The lyrics of the record aimed at large chunks of society, including (but not limited to): police, midlife suburbanites, suits and squares of various shades and stripes… as well as the (at the time) growing hippie youth crowd which composed some of Zappa’s audience. His distaste for hippies is exemplified on songs like “Flower Punk” which is a sloppily-played version of “Hey Joe,” a popular cover choice of San Fran garage rock acts of the time. The singer, pitched-up to sound as if he just inhaled a tank of helium, mocks: “Hey punk, where you going with that flower in your hand?… I’m going up to Frisco to join a psychedelic band… Hey punk, where you going with that button on your shirt?… I’m going to the love-in to sit and play my bongos in the dirt…”
The title itself was a reference to bands and record companies that Zappa saw as capitalizing on the trend of psychedelia to make a quick buck. Listeners who purchased the record and opened the gatefold were greeted with a colorful surprise – a Zappa-fied recreation of the cover of the Beatles’ Sgt. Pepper’s Lonely Hearts Club Band, which had been released the previous year. The Mothers of Invention version featured the band surrounded by a seemingly random selection of recognizable figures ranging from the Statue of Liberty to Elvis Presley. While the Beatles cover pictured the band under a bright blue sky in front of a bed of flowers, the parody cover shows a stormy sky looming above a patch of vegetables.
What listeners at the time didn’t know is that Zappa originally wanted this photograph to be the front cover of the album (Zappa, F. (1975, April 23). Zappa Lecture 23 April 1975. http://bonny.ploeg.ws/lecture.html). When he first came up with the idea, he phoned Paul McCartney to see what the Beatle would think about the joke. As it turns out, McCartney was fine with the satirical cover but told Zappa that the copyright in the cover belonged to EMI and as such, he’d have to have the lawyers at their respective labels get in touch (Ibid.). The ensuing discussions caused the album release to be delayed by eleven months and when it did finally come out, the originally planned cover had been demoted to the interior gatefold while the front cover now presented a photograph of the band in drag (Ibid.). Some of the faces in the parody image also have black bars imposed over their faces, although I’m uncertain if this was done for legal purposes or not.
In recent years, We’re Only in it For the Money has been reissued with the gatefold image restored to the front cover as per Zappa’s original intention. The version on streaming services also displays the parody cover rather than the original release cover. The Beatles catalog is owned in part by McCartney and in part by Sony/ATV. I would here like to hypothetically consider the question – if an action were brought against Universal Music Group (the current owners of the Zappa catalog) for a breach of copyright, could the parody defense under the “Fair Dealing” portion of the Copyright Act be established?
Fair Dealing
The test for a fair dealing defense under the Copyright Act comes from CCH Canadian Ltd v Law Society of Upper Canada (CCH) and is two-part. The first step is determining if the dealing is for one of the enumerated purposes of s. 29 in the Copyright Act. The defense for Universal Music Group would likely try to fit into the parody category. In the case of United Airlines inc v Cooperstock (United), the court determined that parody has two basic elements: an evocation of existing work while exhibiting noticeable differences, and an expression of mockery or humor. Having gone through the similarities and differences between the covers above, and also considering the purposes of the cover in conjunction with the themes of the music, I think that the purpose of parody would be made out quite easily here – this example seems to fit very neatly into the definition of parody.
The court would next have to determine if the dealing was fair. In doing this the court will look at the factors enumerated in the CCH case. The character of the dealing would be quite broad, based on the fact that not only is the album still physically distributed but, since the parody cover is the official streaming cover, available on the internet. The amount of dealing might be arguable but I would expect Sony/ATV to have the advantage because the cover itself borrows a lot from the Beatles’ work in its arrangement and framing. Regarding alternatives to the dealing, one very obvious one exists – to retain the original release cover art of the band in drag. On the other hand, I’d expect the effect of the dealing of the work would likely fall in favor of Universal Music Group. Sgt. Pepper’s is not a new product – it’s a highly iconic, well-known work that I think is less likely to be confused for an image that bears its resemblance.
The United case presents some difficulties with predicting how fair dealing defenses using parody might go. In this hypothetical, there would be some significant differences to United – for example, I think the effect of dealing would be found to be rather low here. However, the title of the album in conjunction with the photo might also have the court determine the purpose is defamatory more than parodic as happened in United. As a defense for Universal, I think it would be best to lean on the principle of large and liberal interpretation of fair dealing from CCH and address some of the concerns coming out of how United treated the motive behind the parody as relevant to determining fairness.
*Professor Festinger, this is my post for this class project. Thank you!*
Communications Law
The hypothetical question posed here is interesting. I would answer it by bringing the issue back to the fundamental purposes of fair dealing and copyright ownership. At the time of its creation, Zappa’s work was clearly a parody. Although decades have passed, I believe it would still be clear due to the iconic nature of the work that you commented on. The issue of motive determining the outcome here is interesting. As the Beatles themselves also heavily used comedy, satire and critiqued social and economic issues, and this fact is well known, I would suggest it would be much more difficult to claim Zappa’s work as defamatory. McCartney could also still confirm this and his approval of the work.