Parody Music Site Shut Down (May 16, 2009)

ASCAP, acting as ignorant as the RIAA, is now attempting to ignore the 2 Live Crew Supreme Court decision that parodies are new derivative works. Just like the RIAA, ASCAP seems intent on misrepresenting the law.

badave.com is run by Below Average Dave, who doesn't have the resources to fight the ASCAP, even though the law is pretty clearly on his side.

Anyone at the EFF or the ACLU interested?

ASCAP Shuts Down Below Average Dave (May 16, 2009)

Below Average Dave, host of the Mad Music Archive's BADave Radio show, has been ordered by ASCAP to remove all his site's parody songs, which featured parodies performed by artists including Odd Austin, Nuclear Bubble Wrap, Jeff Reuben, and even Dave himself. ASCAP cites instrumental royalty issues as the reason.

Dave complied with the order, saying that the site, "being a non-profit site, can not afford to battle [ASCAP]--who is the only license company that doesn't seem to understand the concept that parodies don't fall under their license laws or limitations."

Dave cited a landmark Supreme Court case from 1994 involving the 2 Live Crew vs. the estate of Roy Orbison over the former's sampled use of "Oh, Pretty Woman" in their song "Pretty Woman", which appeared on their 1989 album As Nasty As They Wanna Be. The Supreme Court decided that parody constituted fair use, requiring no permission or royalties.

However, there were no royalties to collect on Dave's site, as he charged no one to access the songs featured.

"The parodies on this site were non-profit, educational, comment based or criticism. These uses have consistently been held up in court as fair use, and parody has won in court," Dave said in a web page explaining what happened.

Liz Vitale, representing ASCAP, replied in an email, "Even though the lyrics are different from the original song, the writers of the music are the same. It is those writers that ASCAP is licensing on behalf of."

The artists featured on Dave's website used various means to obtain their instrumentals. Dave himself buys backing tracks from Karaoke Version, a service designed for that purpose. Karaoke Version, as the performer of the backing tracks, already pays the royalties that Vitale described, and has expressly given Dave permission to use their service for parody purposes.

Other artists, like Nuclear Bubble Wrap, perform their own instrumentals, but in those cases, the instrumentals are performed for the express purpose of the parody and are likely protected.

"[I]t's bad when even the RIAA isn't part of a fight," Dave commented on his website, referencing that there have as yet been no cases since the 1994 court decision where the RIAA have taken legal action against homebrew parodists.

The case does not affect Dave's program on the Mad Music Archive, as the MMA pays streaming royalties. The royalty payments are to cover the airing of RIAA, ASCAP, and BMI-listed artists.

Below Average Dave continues to provide access to his shows, as well as written parody lyrics, on his website at badave.com.

Story by Emi Briet