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''Berlin v. E.C. Publications, Inc.'', 329
F.2d The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by We ...
541 (
2d Cir. The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate j ...
1964), was an important
United States copyright law The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of th ...
case decided by the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate j ...
in 1964 involving the right to parody a well-known melody. ''
Mad Mad, mad, or MAD may refer to: Geography * Mad (village), a village in the Dunajská Streda District of Slovakia * Mád, a village in Hungary * Adolfo Suárez Madrid–Barajas Airport, by IATA airport code * Mad River (disambiguation), several ri ...
'' magazine had published a special edition in 1961 titled ''More Trash from Mad'' No. 4, which featured a songbook containing 57
parody A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its su ...
lyric Lyric may refer to: * Lyrics, the words, often in verse form, which are sung, usually to a melody, and constitute the semantic content of a song * Lyric poetry is a form of poetry that expresses a subjective, personal point of view * Lyric, from ...
s to existing popular songs, such as Irving Berlin's "A Pretty Girl is Like a Melody" (''Mad''s version was the hypochondriac "Louella Schwartz Describes Her Malady"). In each case, readers were advised that the magazine's lyrics could be sung "to the tune of" the original compositions' titles. Following the magazine's publication, several music corporations sued E.C. Publications, Inc. (the publisher of ''Mad'' magazine) over 25 of the 57 parodies. The suit asked for one dollar per song for each issue of ''More Trash from Mad'' No. 4 that had been published, totaling $25 million in alleged
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised a ...
. The cover of the special had borne the inadvertently prescient blurb, "For Solo or Group Participation (Followed by Arrest)." Berlin was the named plaintiff, but the suit was brought not just by Irving Berlin Inc., but also by the music publishers
Chappell Chappell may refer to: Places * Chappell, Nebraska, United States * Chappells, South Carolina, United States * Chappell (crater) on the moon * Mount Chappell Island, Tasmania, Australia * North West Mount Chappell Islet, Tasmania, Australia Organi ...
,
T.B. Harms T.B. Harms & Francis, Day, & Hunter, Inc., based in the Tin Pan Alley area of New York City, was one of the seven largest publishers of popular music in the world in 1920. T.B. Harms & Francis, Day & Hunter, Inc. was one of seven defendants named ...
, and
Leo Feist Leopold Feist (January 3, 1869, New York City – June 21, 1930, Mount Vernon, New York), in 1897 founded and ran a music publishing firm bearing his name. In the 1920s, at the height of the golden age of popular music, his firm was among the seve ...
. Several of Berlin's compositions were at the heart of the dispute, but the complaint also cited songs by
Jerome Kern Jerome David Kern (January 27, 1885 – November 11, 1945) was an American composer of musical theatre and popular music. One of the most important American theatre composers of the early 20th century, he wrote more than 700 songs, used in ove ...
,
Cole Porter Cole Albert Porter (June 9, 1891 – October 15, 1964) was an American composer and songwriter. Many of his songs became standards noted for their witty, urbane lyrics, and many of his scores found success on Broadway and in film. Born to ...
,
Richard Rodgers Richard Charles Rodgers (June 28, 1902 – December 30, 1979) was an American composer who worked primarily in musical theater. With 43 Broadway musicals and over 900 songs to his credit, Rodgers was one of the most well-known American ...
,
Lorenz Hart Lorenz Milton Hart (May 2, 1895 – November 22, 1943) was an American lyricist and half of the Broadway songwriting team Rodgers and Hart. Some of his more famous lyrics include " Blue Moon", " The Lady Is a Tramp", "Manhattan", " Bewitched, ...
, and
Oscar Hammerstein II Oscar Greeley Clendenning Hammerstein II (; July 12, 1895 – August 23, 1960) was an American lyricist, librettist, theatrical producer, and (usually uncredited) director in the musical theater for almost 40 years. He won eight ...
. The trial court found for ''Mad'' publisher E.C., establishing a legal precedent (the so-called "''Mad'' magazine exception") protecting parody (but not, at that time,
satire Satire is a genre of the visual arts, visual, literature, literary, and performing arts, usually in the form of fiction and less frequently Nonfiction, non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, ...
). The court ruled in E.C.'s favor on all but two of the parodies—" There's No Business Like No Business" and "
Always Always may refer to: Film and television * ''Always'', a 1985 film directed by Henry Jaglom * ''Always'' (1989 film), a 1989 romantic comedy-drama directed by Steven Spielberg * ''Always'' (2011 film), a 2011 South Korean film, also known as ''O ...
"—whose lyrics were considered to revolve around the key words "business" and "always," and thus hewed too closely to the originals. For those two songs, the court denied summary relief to both parties. The other 23 parodies, such as "Louella Schwartz...", " The First Time I Saw Maris" and " The Horse That I'm Betting," were judged sufficiently distinct to qualify under "fair use." The plaintiffs appealed to the Second Circuit, which ruled in ''Mad'' favor for ''all'' 25 songs, not just the 23 that had been cleared by the trial court. In his decision, Circuit Court Judge
Irving Kaufman Irving Robert Kaufman (June 24, 1910 – February 1, 1992) was a United States circuit judge of the United States Court of Appeals for the Second Circuit and a United States District Judge of the United States District Court for the Southern Dist ...
wrote: The music companies sought review by the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...
, which declined to grant certiorari and so sustained the circuit court's ruling.Federal Supplement, ''West's Federal Reporter''; Second Series Following the ruling, ''Mad'' went on to publish many hundreds of song parodies over the decades, including paperback collections. In 2009, the magazine's most prolific rhyming parodist,
Frank Jacobs Franklin Jacobs (May 30, 1929 – April 5, 2021) was an American author of satires, known primarily for his work in '' Mad'', to which he contributed from 1957 to 2014. Jacobs wrote a wide variety of lampoons and spoof, but was best known as a ve ...
, appeared in the sixth chapter of the
PBS The Public Broadcasting Service (PBS) is an American public broadcaster and non-commercial, free-to-air television network based in Arlington, Virginia. PBS is a publicly funded nonprofit organization and the most prominent provider of ed ...
documentary ''Make 'em Laugh: The Funny Business of America'' singing "Blue Cross," his parody of Berlin's "Blue Skies" (and health insurance) that had appeared in the original 1961 collection.


Parodies from ''Sing Along with MAD''

Written by Irving Berlin: *"
You're Just in Love "You're Just in Love" is a popular song by Irving Berlin. It was published in 1950 and was first performed by Ethel Merman and Russell Nype in ''Call Me Madam'', a musical comedy that made its debut at the Imperial Theatre in New York City on ...
"—parodied as "That's the Way
Payola Payola, in the music industry, is the illegal practice of paying a commercial radio station to play a song without the station disclosing the payment. Under US law, a radio station must disclose songs they were paid to play on the air as spons ...
Goes" *" Easter Parade" -- "Beauty Parade" *"
There's No Business Like Show Business "There's No Business Like Show Business" is an Irving Berlin Irving Berlin (born Israel Beilin; yi, ישראל ביילין; May 11, 1888 – September 22, 1989) was a Russian-American composer, songwriter and lyricist. His music forms a ...
" -- "There's No Business Like No Business" *" Blue Skies" -- " Blue Cross" *"
Always Always may refer to: Film and television * ''Always'', a 1985 film directed by Henry Jaglom * ''Always'' (1989 film), a 1989 romantic comedy-drama directed by Steven Spielberg * ''Always'' (2011 film), a 2011 South Korean film, also known as ''O ...
" -- "Always" *"
A Pretty Girl is Like a Melody "A Pretty Girl Is Like A Melody" is a popular song written by Irving Berlin in 1919 which became the theme song of the ''Ziegfeld Follies''. The first verse and refrain are considered part of the Great American Songbook and are often covered as a ...
" -- "Louella Schwartz Describes Her Malady" *"
The Girl That I Marry "The Girl That I Marry" is a song from the 1946 musical '' Annie Get Your Gun'', written by Irving Berlin. It was originally performed by Ray Middleton on stage and on record. Hit versions in 1946 were by Frank Sinatra and by Eddy Howard (Maje ...
" "The Horse That I'm Betting" *"
Cheek to Cheek "Cheek to Cheek" is a song written by Irving Berlin in 1934–35, specifically for the star of his new musical, Fred Astaire. The movie was ''Top Hat'', co-starring Ginger Rogers.
" -- "Sheik to Sheik" Written by Jerome Kern: *"
Who Who or WHO may refer to: * Who (pronoun), an interrogative or relative pronoun * Who?, one of the Five Ws in journalism * World Health Organization Arts and entertainment Fictional characters * Who, a creature in the Dr. Seuss book ''Horton Hear ...
"—parodied as "Luce" *"
The Last Time I Saw Paris ''The Last Time I Saw Paris'' is a 1954 American Technicolor romantic drama made by Metro-Goldwyn-Mayer. It is loosely based on F. Scott Fitzgerald's short story "Babylon Revisited." It was directed by Richard Brooks, produced by Jack Cummings ...
" -- "The First Time I Saw Maris" *"
Smoke Gets in Your Eyes "Smoke Gets in Your Eyes" is a show tune written by American composer Jerome Kern and lyricist Otto Harbach for the 1933 musical '' Roberta''. The song was sung in the Broadway show by Tamara Drasin. Its first recorded performance was by Gert ...
" -- "
Castro Castro is a Romance language word that originally derived from Latin ''castrum'', a pre-Roman military camp or fortification (cf: Greek: ''kastron''; Proto-Celtic:''*Kassrik;'' br, kaer, *kastro). The English-language equivalent is ''chester''. I ...
Told Us Lies" Written by Cole Porter: *"
I've Got You Under My Skin "I've Got You Under My Skin" is a song written by American composer Cole Porter in 1936. It was introduced that year in the Eleanor Powell musical film ''Born to Dance'' in which it was performed by Virginia Bruce. It was nominated for the A ...
"—parodied as "I Swat You Hard on the Skin" *"
Begin the Beguine "Begin the Beguine" is a popular song written by Cole Porter. Porter composed the song between Kalabahi, Indonesia, and Fiji during a 1935 Pacific cruise aboard Cunard's ocean liner ''Franconia''. In October 1935, it was introduced by June K ...
" -- "When They Bring In the Machine" *"
Anything Goes ''Anything Goes'' is a musical with music and lyrics by Cole Porter. The original book was a collaborative effort by Guy Bolton and P. G. Wodehouse, heavily revised by the team of Howard Lindsay and Russel Crouse. The story concerns madcap ...
" -- "Anything Goes" *"
You're the Top "You're the Top" is a Cole Porter song from the 1934 musical '' Anything Goes''. It is about a man and a woman who take turns complimenting each other. The best-selling version was Paul Whiteman's Victor single, which made the top five. It was th ...
" -- "You're the Top" *" Let's Do It" -- "Let's Do It" *"
I Get a Kick Out of You "I Get a Kick Out of You" is a song by Cole Porter, which was first sung in the 1934 Broadway musical '' Anything Goes'', and then in the 1936 film version. Originally sung by Ethel Merman, it has been covered by dozens of prominent performers, ...
" -- "I Get a Kick-Back From You" *"
It's All Right with Me "It's All Right with Me" is a popular song written by Cole Porter, for his 1953 musical '' Can-Can'', where it was introduced by Peter Cookson as the character Judge Aristide Forestier. The song is also used in the Cole Porter musical '' High ...
" -- "To Get More Salary" Written by Richard Rodgers, with Lorenz Hart or Oscar Hammerstein II: *"
Where Or When "Where or When" is a show tune from the 1937 Rodgers and Hart musical '' Babes in Arms''. It was first performed by Ray Heatherton and Mitzi Green. That same year, Hal Kemp recorded a popular version. The song also appeared in the film vers ...
"—parodied as "Where Or When" *"
It Might As Well Be Spring "It Might as Well Be Spring" is a song from the 1945 film ''State Fair''. which features the only original film score by the songwriting team of Richard Rodgers and Oscar Hammerstein II. "It Might as Well Be Spring" won the Academy Award for Best ...
" -- "I'm Glad That You Can't Sing" *"A Cockeyed Optimist" --"A Nuclear Physicist" *"
There's a Small Hotel "There's a Small Hotel" is a 1936 song composed by Richard Rodgers, with lyrics by Lorenz Hart. Originally written for but dropped from the musical ''Billy Rose's Jumbo'' (1935), it was used in ''On Your Toes'' (1936), where it was introduced by R ...
" -- "There's a Small Canal" *" Oklahoma" -- "Albert Einstein" *"
My Funny Valentine "My Funny Valentine" is a show tune from the 1937 Richard Rodgers and Lorenz Hart coming of age musical '' Babes in Arms'' in which it was introduced by teenaged star Mitzi Green. The song became a popular jazz standard, appearing on over 1300 ...
" -- "My Padded Overtime" *" Shall We Dance?" -- "Shall We Strike?" *" Hello, Young Lovers" -- "Hello, Young Doctors" *"
I Whistle a Happy Tune "I Whistle a Happy Tune" is a show tune from the 1951 Rodgers and Hammerstein musical, ''The King and I.'' It is sung by the Governess Anna Leonowens (originally played on Broadway by Gertrude Lawrence) to her son Louis after the curtain rises on ...
" -- "I Tell 'Em They've Got a Bug" *"
My Heart Stood Still "My Heart Stood Still" is a 1927 popular song composed by Richard Rodgers, with lyrics by Lorenz Hart. It was written for the Charles Cochran revue ''One Dam' Thing after Another'', which opened at the London Pavilion on May 19, 1927. The show ...
" -- "My Dreams Were Killed" *"
Manhattan Manhattan (), known regionally as the City, is the most densely populated and geographically smallest of the five Boroughs of New York City, boroughs of New York City. The borough is also coextensive with New York County, one of the List of co ...
" -- "I'll Have Nairobi" *"
Oh, What a Beautiful Morning "Oh, What a Beautiful Mornin'" is the opening song from the musical '' Oklahoma!'', which premiered on Broadway in 1943. It was written by composer Richard Rodgers and lyricist/librettist Oscar Hammerstein II. The leading male character in ''Okla ...
" -- "Oh, What a Beautiful Beefsteak" The plaintiffs held the publishing rights to 30 of the 57 songs that had been parodied by ''Mad''. Other than the six parodies specifically cited in the two judges' rulings -- "The First Time I Saw Maris", "Louella Schwartz Describes Her Malady", "I Swat You Hard on the Skin", "Blue Cross", "Always", and "There's No Business Like Show Business"—it is unclear which 19 of the plaintiffs' remaining 24 songs were in dispute. Frank Jacobs wrote 23 of the parodies, whose topics ranged from nuclear physics to automation to the Philadelphia Phillies.
Larry Siegel Lawrence H. Siegel (October 29, 1925 – August 20, 2019) was an American comedy writer and satirist who wrote for television, stage, magazines, records, and books. He won three Emmys as Head Writer during four seasons of ''The Carol Burnett Show ...
wrote another 23, on subjects from overcrowded classrooms to the 1960 Nixon-Kennedy debate to books about Hitler. The remaining 11 song parodies were credited to "The Editors." All of Jacobs' contested parodies were later included in the 2015 book collection ''MAD's Greatest Writers: Frank Jacobs''.


See also

*''
Campbell v. Acuff-Rose Music, Inc. ''Campbell v. Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994), was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. This case established that the fact that money is made by a work do ...
'' * ''Mad'' magazine#Controversy and lawsuit


References

{{USCopyrightActs United States copyright case law United States Court of Appeals for the Second Circuit cases 1964 in United States case law Fair use case law Irving Berlin Mad (magazine) Sing-along