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Thursday, April 21, 2011

The Gaga Saga as a law-and-norms story

What little I observe of entertainment news has suggested that nothing titillates audiences and outlets more than a public spat (or, as the case may be, kerfuffle) between two celebrities.  Yesterday’s to-do du jour pitted Weird Al Yankovic against Lady Gaga in the court of pop-cultural opinion.  As Al described in a thorough blog post, he wanted to parody Gaga’s “Born This Way” with a knockoff titled “Perform This Way” that would poke fun at Gaga’s outrageousness (raising the question whether you can parody someone whose style borders on parody anyway).  Al, as is his custom, gave Gaga (through, it appears, her management company) copies of the lyrics, and asked for permission to make the parody.  Given that Gaga’s original song is “an earnest human rights anthem” (Al’s words and opinion, not mine), Weird Al also offered to give any profits from the song to charity.

Gaga’s management company responded that she’d have to hear the song before approving, so Al went to the considerable time and expense of creating a fully mastered sound recording, and submitted it to Gaga’s management company.  Gaga apparently finally formed an opinion:  No.  Al, peeved (in part because he seems to be aware that he probably does not even need to seek permission for parodies under federal copyright law’s fair use doctrine), went ahead and released the song on YouTube without the accompanying video that he’d been planning. 

The internets responded quickly, as they do, and the verdict was squarely on the side of Al.  The comments on Al’s blog post about the Gaga Saga were particularly malevolent toward Lady G, and in the midst of the bile-fest, a reversal occurred.  Now the word from her camp (pun fully intended) was that Gaga loved the song, and was thrilled to give permission and have Al parody the living hell out of it, video, album, and all.  The story is that Lady Gaga had never heard “Perform This Way,” and that her manager had wrongly reported that she wanted to deny permission for the parody (indeed, he appears never to have actually told her about the parody).

This ultimate outcome isn’t surprising.  Weird Al always asks for permission to do his parodies, and he almost always gets it (though there have been other testy misunderstandings, including one involving Coolio and Weird Al’s “Amish Paradise” parody of “Gangster’s Paradise”).  But how the Gaga saga unfolded is unusual, and, I think, interesting in what it tells us about how social norms interact with, and often push to the sideline, legal doctrines that formally mediate the rights of owners and users.  I say more about the interaction of copyright law and social norms, and what the Al/Gaga tiff says about it, below the fold.

Most law professionals, I’d wager, tend to be legal centralists.  That is, we assume that law is a, if not the, primary determinant of people’s conduct.  Criminal laws purportedly make would-be wrongdoers think twice before doing something awful like jaywalking or marrying someone of the same gender.  Economic actors are thought to bargain in the shadow of the baseline entitlements law creates.  But lots of evidence suggests that this legal centralist account often fails.  I just finished a paper analyzing an elaborate regulation scheme that arose, and persists, with little if any thought about available IP law.  And the Gaga saga provides an object lesson illustrating how disputes can arise and be resolved in ways that are unrelated to, and in some respects even inconsistent with, what law might predict.

Start with Weird Al’s practice of seeking permission for his signature parodies.  This move seems puzzling from a legalist perspective because Al’s works are pretty clearly the kinds of uses that are permitted pursuant to the fair use provisions of the Copyright Act.  They’re parodies (because they mock the original work directly), and while that’s not dispositive of the issue, parodies are a form of use that’s strongly favored as fair following Campbell v. Acuff-Rose and its progeny.

And yet despite his apparent entitlement to parody without permission, Weird Al goes about seeking it.  Why?  My guess is that this practice is driven by norms and practices distinctive to the music industry.  By asking artists whether he can parody their songs, Weird Al shows respect to his fellow musicians—a gesture whose effectiveness may be enhanced by the fact that it’s unnecessary.  (Consider by comparison the tradition of asking a bride’s father for permission to marry his daughter—everyone knows that it’s not necessary, but it’s a nice way of building goodwill by performing deference.)  And showing this kind of respect likely has long-term salutary effects for Al, by building a store of goodwill within the music  world, and by forestalling litigation that might otherwise ensue (if only out of spite).

The trick, of course, is:  what do you do when you ask for permission to do something you’re entitled to do anyway but get denied?  That was the conundrum in which Al found himself yesterday, and a legal centralist would likely predict that he’d go ahead and exercise his prerogative and parody away.  But he didn’t:  Instead, Al took a halfway measure, apparently conceding not to include the "I Perform this Way" in the forthcoming album, but blogging about the episode at length, and posting the song (sans video) on YouTube with notes about how Gaga had negged it.

The ensuing response was swift and conclusive:  the court of public opinion roundly rejected Lady G’s rejection of the parody, and delivered its verdict in terms ranging from tactful to the kind of unhinged-crazy that is so distinctive to internet threads.  I cannot explain why or how Gaga and her people reversed themselves, but I strongly suspect the outpouring of vitriol had something to do with it.  At the very least, the angry tweets and posts brought the issue to the attention of Gaga, who learned that her manager had negged the song without her knowing about it.  Law again appears to have played little role.  One can imagine a legalist narrative (Weird Al says, “I’m entitled to make this song anyway per fair use, so it’s going in the album, like it or not,” and in light of that admonition, Gaga capitulates), but instead we see social forces—mass outrage, directed shaming—doing the work.

It’s tempting to read too much into stories like this.  Legal debates (and non-legal debates, obv.) often get reified into their polar categories, with aficionados of each side claiming that an anecdote illustrates the truth of their preferred camp (“I told you law was ir/relevant!”).  I want to resist this temptation here, first by pointing out that (again, obv.) this single anecdote can’t do sweeping analytical work, but also by stressing that it shows at most that law is marginal, but not irrelevant.  Perhaps Weird Al’s success in gaining permission for his parodies is due in large part to the owners’ knowledge that he’s likely entitled to parody them anyway, so resistance would be futile (though it should be observed that Al was doing this well before Campbell adumbrated parody’s status as a favored category of use in 1994).  And perhaps the outrage about Gaga’s initial response was due to her denying Al what was perceived to be his entitlement at law.  So the players in the Gaga saga may not have been explicitly conducting themselves in the shadow of law, but law may have been lurking in the shadows in ways that are not obvious.

Finally, it’s also tempting to conclude that when a story like this works out for the best, that it’s more evidence that social norms tend to produce normatively attractive outcomes.  But this, too, would be premature, I think.  In this case, the screaming cacophony of the internet pushed in favor of, and may have helped achieve, what seems like the right result (under law certainly, and probably also normatively).  But this sanguine story shouldn’t lead us to be uncritically enthusiastic about the wisdom of cyber-crowds.  One sobering note is that the many posters who excoriated Lady Gaga got their facts exactly wrong.  If her official story is true (and I have no reason to think it's not), Gaga never actually denied permission for “I Perform This Way,” but you won’t see any retractions from the brave anonymous posters who were calling for her scalp before getting all the information. This isn’t to suggest that the collective voice of the internet is inevitably bad, either, but only that it has no intrinsic moral valence.  This voice is a powerful force, like gravity or desire, and like those other natural forces can be directed at bad as well as good ends.

Posted by Dave_Fagundes on April 21, 2011 at 08:16 PM in Culture, Intellectual Property | Permalink


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Patrick: Thanks! Chris and Dotan's paper does play a big role in my article, though I have a slightly different take on how norms emerge than they do.

Shag: I'd like to take this opportunity to publicly clarify that I do not feel anything like "adulation" for Lady Gaga, though I do admire her willingness to do all manner of crazy crap. My use of "Lady G" was just a way to change up the way I refer to her in the interest of stylistic variation.

Howard: The distinction between owner/artist had not occurred to me, but it's really interesting. I think it furthers the law/norms story because what Al is doing is not paying deference to the legal owner of the rights in the musical work and sound recording, but rather to the creator, who may own no enforceable copyright in either. It almost sounds more like a moral rights issue from that perspective.

Joe: True that Al is notoriously a nice guy, but what relatively little I've seen of entertainment industry practices suggests that this is quite anomalous. If anything, the norms often seem the reverse--people strike me as gratuitously and intentionally mean, and being a nice guy is regarded as a sign of contemptible weakness. What's interesting is that the nice-guy strategy may actually be the optimal one, as you (and Al's experience) suggest.

Posted by: Dave | Apr 22, 2011 11:24:39 AM

Al seems to have a nice guy persona so asking permission would seem to match that. He released it on YouTube after going out of his way to perform it (Gaga's people said she wanted that first before she could decide whether or not to okay it ... the effort needed there was part of why he was peeved, thinking the lyrics alone would be enough).

Overall, with these permissions and all, it would seem logical that normal practice would be to try to do it all as nicely as possible. That is how it works in many non-legal situations too. The issue isn't forced. It is when it has to be that the messiness (and lawyers) often develops.

Posted by: Joe | Apr 22, 2011 11:06:53 AM

Al had similar problems trying to get Ray Davies (or the record label or whoever owned the rights) to agree to let him do "Yoda" (to The Kinks' song "Lola"). The story I have long heard is that the company refused, then when Al met Davies at some point later he asked why he had denied permission and Davies said he did not know anything about it. That began Al's practice of going to the artist, even if the artist is not the actual rights holder. I wonder how that fits into your "norms story"--Al figures the artist may be more receptive to the parody than the record company and gets the artist on his side against what may be the actual copyright owner.

Posted by: Howard Wasserman | Apr 22, 2011 8:41:26 AM

Referring to Gaga as "Lady G" seems too close to "Lady Day" referring to Billie Holiday, who established her "chops" musically over many years of performance. Perhaps this premature adulation might be changed to "Lady Gag" until her "chops" are earned over time.

Posted by: Shag from Brookline | Apr 22, 2011 7:08:10 AM

I haven't read your roller derby paper yet (though I intend to), but I just wanted to tell you that I _love_ the title and abstract. It reminds me of another of my favorite IP papers, the Oliar & Sprigman paper about IP norms in standup comedy. I really enjoy these explorations of how norms are developed and (sometimes) enforced without the intervention of formal legal mechanisms.

Posted by: Patrick | Apr 21, 2011 11:43:36 PM

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