Do I need permission to record alternate / parody lyrics to songs which are copyright protected?

In the early 1990s the acappella group I directed, the Solstice Assembly, did a recording called "Under the Drawbridge." We named the album and then found out that the publishing company holding the rights to the song "Under the Boardwalk" refused us permission to record our parody. Luckily we found out before we wasted the money to record it. Ever since then I have been very wary of recording any copyrighted material at all.

Soon after that recording was issued, I now discover, the law on use of parodic lyrics was clarified. In Campbell v. Acuff-Rose Music,  (1994) the United States Supreme Court established that a commercial parody can qualify as fair use. "That money is made does not make it impossible for a use to be fair... Parodies in general will rarely substitute for the original work, since the two works serve different market functions."

I'm doing a Hanukah album with three songs that fall into this troubling category and am trying to figure out if I have to get permission to record them, or if paying the licensing fee is sufficient and I don't need permission to sing new lyrics to old songs.

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Columbia Pictures Corp. v. National Broadcasting Co. 1955: "A parody is entitled at least to "conjure up" the original. Even more extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary."

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In Berlin v. E. C. Publications, Inc. Irving R. Kaufman, Circuit Judge, wrote

Irving BERLIN et al., Plaintiffs-Appellants, v. E. C. PUBLICATIONS, INC., et al., Defendants-Appellees, United States Court of Appeals Second Circuit. Argued January 10, 1964. Decided March 23, 1964. IRVING R. KAUFMAN, Circuit Judge, wrote:

Through depression and boom, war and peace, Tin Pan Alley has light-heartedly insisted that "the whole world laughs" with a laugher, and that "the best things in life are free." In an apparent departure from these delightful sentiments, the owners of the copyrights upon some twenty-five popular songs instituted this action against the publishers, employees and distributors of "Mad Magazine," alleging that Mad's publication of satiric parody lyrics to plaintiffs' songs infringed the copyrighted originals...

The validity of plaintiffs' copyrights has never been challenged, and we need concern ourselves here only with the nature, purpose and effect of the alleged infringements.

... the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants' parodies might satisfy or even partially fulfill the demand for plaintiffs' originals; quite soundly, it is not suggested that "Louella Schwartz Describes Her Malady" might be an acceptable substitute for a potential patron of "A Pretty Girl Is Like a Melody."

Rather, plaintiffs ... reject the notion that a parody or burlesque version of the original may ever be justified as the sort of "fair use" which traditionally has permitted a literary critic to employ limited quotations from the copyrighted work under review.

While indeed broad, the area in which a copyright proprietor is permitted the exclusive commercial benefits of his copyrighted work is clearly not without limit...

Turning to the specific question before us, we find that the extent to which a parodist may borrow from the work he attempts to burlesque is largely unsettled. ... Most contemporary discussions of the treatment to be afforded parody were stimulated by two related cases ... Loew's, Inc. v. Columbia Broadcasting System ... and Columbia Pictures Corp. v. National Broadcasting Co....

In the Loew's case, television comedian Jack Benny was alleged to have infringed the copyright upon "Gaslight," a motion picture which he satirized in a televised sketch entitled "Autolight"; in the Columbia litigation, "From Here to Obscurity," a television burlesque by comedian Sid Caesar upon the screen version of "From Here to Eternity," was at issue. Although the same District Judge wrote the opinions in both cases, the plaintiffs were permitted to recover for the Benny parody, but were denied relief in the Caesar case.

... in Benny's case ... not only had the parody followed the general plot of the original motion picture, but specific incidents and details had been copied and extensive portions of the dialogue had been reproduced verbatim. It was this borrowing from the original to a far greater degree than that required if the parody is to "recall or conjure up" that original, which caused the court to reject the defense of "burlesque"

But despite Benny's "borrowing" of substantially more material from the copyrighted original than was necessary for a successful burlesque, the Benny holding and its accompanying dictum suggesting that parody could not be justified as "fair use" was roundly criticized by many commentators. See, e. g., Comment, Parody and the Law of Copyright, 29 Fordham L.Rev. 570 (1961); Note, Parody and Burlesque — Fair Use or Copyright Infringement?, 12 Vand.L. Rev. 459 (1959); Note, Parody and Copyright Infringement, 56 Colum.L.Rev. 585 (1956). But see Selvin,2 Parody and Burlesque of Copyrighted Works as Infringement, 6 Copyright Soc'y Bull. 53 (1958). Several scholars believed that the decisions of both the District Court and the Court of Appeals were unduly restrictive; the fear was expressed that the art of parody, which has thrived from the time of Chaucer to, on a somewhat different level, the current vogue for the lyrics of Allen Sherman, would be stifled if its propriety were tested entirely by the precise amount appropriated from the original.

In the present case ... We believe in any event that the parody lyrics involved in this appeal would be permissible under the most rigorous application of the "substantiality" requirement. The disparities in theme, content and style between the original lyrics and the alleged infringements could hardly be greater. ... the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a "substantial" taking ... we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter.

... While the social interest in encouraging the broad-gauged burlesques of Mad Magazine is admittedly not readily apparent, and our individual tastes may prefer a more subtle brand of humor ... we believe that parody and satire are deserving of substantial freedom — both as entertainment and as a form of social and literary criticism.

At the very least, where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original ... a finding of infringement would be improper.

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ELSMERE MUSIC, INC., v. NATIONAL BROADCASTING COMPANY, United States Court of Appeals, Second Circuit. Argued May 28, 1980. Decided June 9, 1980:

This copyright infringement suit concerns a skit, shown on the television program "Saturday Night Live," poking fun at New York City's public relations campaign and its theme song. In the four-minute skit the town fathers of Sodom discuss a plan to improve their city's image. The satire ends with the singing of "I Love Sodom" to the tune of "I Love New York." The District Court for the Southern District of New York (Gerard L. Goettel, Judge) rejected appellant's claim of copyright infringement, concluding that the parody was protected fair use. Believing that, in today's world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody, and that the District Court correctly applied the doctrine of fair use, we affirm on Judge Goettel's thorough opinion.1 482 F.Supp. 741.