Parody is protected by “fair use” copyright doctrine when it’s used for the purpose of commenting on the original. Or, to quote the decision of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a parody is a work that “at least in part, comments on that author’s works.”
For example, one Weird Al song that does qualify as fair-use protected “parody” in this sense “Smells Like Nirvana.” Weird Al is lifting the melody of Nirvana’s song “Smells like Teen Spirit,” but the fact that he’s using a Nirvana melody and mimicking Kurt Cobain’s singing style is part of the commentary: it wouldn’t make sense if he took a Queen song and rewrote the lyrics to make fun of Nirvana.
But most of the songs we colloquially call “Weird Al parodies” wouldn’t qualify as parody under the Campbell…
Parody is protected by “fair use” copyright doctrine when it’s used for the purpose of commenting on the original. Or, to quote the decision of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a parody is a work that “at least in part, comments on that author’s works.”
For example, one Weird Al song that does qualify as fair-use protected “parody” in this sense “Smells Like Nirvana.” Weird Al is lifting the melody of Nirvana’s song “Smells like Teen Spirit,” but the fact that he’s using a Nirvana melody and mimicking Kurt Cobain’s singing style is part of the commentary: it wouldn’t make sense if he took a Queen song and rewrote the lyrics to make fun of Nirvana.
But most of the songs we colloquially call “Weird Al parodies” wouldn’t qualify as parody under the Campbell standard if he tried to rely on fair use alone. They don’t really “comment on” the original; they just use the melody as a vehicle for a completely different joke, as Weird Al does when he rewrites “Mickey” to be about the I Love Lucy character “Ricky.” Absent permission, they’d be on very shaky legal ground.
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Weird Al often tells stories about how he talked directly to specific musical artists to get their permission for a song, which often include charming anecdotes about how he met them in person or over the phone to get a “yeah, that sounds fun.” But that is not the end of the conversation, it is the start of a negotiation between “my people and your people.”
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So, the answer to “how does Weird Al get away with it” is that he doesn’t “get away with it.” He pays people for the right to use their music, except in the case of style parodies, where he doesn’t need to.
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If there is one thing that I would like Weird Al fans to take away from this post, it is that Albuquerque is not an original song.
This is new information to every Weird Al fan I encounter, and I’ve encountered a lot of Weird Al fans. This is a weird misconception to have about a particularly famous Weird Al song, especially when Weird Al is not an artist typically known for producing original songs: you’d think the prior would be “this is probably a parody song,” and yet everyone seems to think it’s a Weird Al original.
I think this case is best made simply by exposing you to the music. Here is Albuquerque by Weird Al, and here is Dick’s Automotive by the Rugburns.