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Hi Geo

We do not believe that it is a fair use. If you wish to publish/release the adaptation you proceed at your own peril. We reserve all rights.

Thank you,

Todd Johnsen
Music Sampling/Mechanical Licensing
Universal Music Publishing Group

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Mr. Johnsen,

Under a reading of the applicable statute (i.e., 17 USC 107), in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Taking these one at a time:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
"While the purpose of the use is, in part, commercial, the court has held:
The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." – Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
The lyrics of the parody use only one line of the original song, “There was thunder, thunder over thunder road.” There is no credible argument that the parody is not transformative.

(2) the nature of the copyrighted work;
The court addressed this issue:
"The second §107 factor, 'the nature of the copyrighted work,' is not much help in resolving this and other parody cases, since parodies almost invariably copy publicly known, expressive works" – Campbell, supra

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
While the parody uses the entire tune of the song and one line of the lyrics, given the age of the song, and the fact that it is rarely heard, any less use would not suffice to conjure up the song for parody.

(4) the effect of the use upon the potential market for or value of the copyrighted work.
The current market for the original has dwindled to insignificance. Indeed, playing of the parody may help improve the market for the original by bringing it to the public’s attention, and Mr. McCalip has included a link to the original in an attempt to do so. Even if that were not the case, the parody would not infringe on the market for the original to any measurable extent, if at all.

However, the parody does create a completely new market for the tune, which Mr. McCalip has repeatedly offered to pay a license on.

There are two other issues that need to be addressed in this case:
First, the parody is not only a very political statement, but is also intended to educate people as to a political situation. Thus, there is a First Amendment issue here.
"First Amendment privileges are also preserved through the doctrine of fair use. Until codification of the fair-use doctrine in the 1976 Act, fair use was a judge-made right developed to preserve the constitutionality of copyright legislation by protecting First Amendment values. Had fair use not been recognized as a right under the 1976 Act, the statutory abandonment of publication as a condition of copyright that had existed for over 200 years would have jeopardized the constitutionality of the new Act because there would be no statutory guarantee that new ideas, or new expressions of old ideas, would be accessible to the public. Included in the definition of fair use are 'purposes such as criticism, comment, news reporting, teaching..., scholarship, or research.' §107.
The exceptions carved out for these purposes are at the heart of fair use's protection of the First Amendment, as they allow later authors to use a previous author's copyright to introduce new ideas or concepts to the public. Therefore, within the limits of the fair-use test, any use of a copyright is permitted to fulfill one of the important purposes listed in the statute." – SunTrust Bank v Houghton Mifflin Co. 268 F3d 1257, 60 USPQ2d 1225, 14 FLW Fed C 1391

The second issue that needs to be addressed is whether the use of copyright law in this case is in violation of the Constitution. Per Article I, Section 8 the purpose of the copyright law is, “To promote the progress of science and useful arts…”. To accomplish that purpose, Congress was given the power to secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The theory being that the exclusive right would provide a financial incentive for creativity. However, the law this case is not being used to insure that the creator receives any financial reward for his creation. Indeed, the evidence shows that licensing the parody would add to the financial reward to the creator. Instead, the law is being used not to promote progress but to impede it.

For the above reasons, I believe that it is fair use both as a parody and as a political statement, and therefore it does come under the fair use exception. If you disagree you obviously have the right to take me to court over this, however, be advised that you do so "at your own peril."

All rights under the First Amendment reserved and exercised under protection of federal law.

Having said that:
https://geomccalip.bandcamp.com/track/amish-thunder-road

-- Geo. McCalip

P.S. The offer of a license agreement remains on the table.