The Internet has fallen in love with the Holderness family’s “Xmas Jammies”—set to Will Smith’s “Miami” (a lot more on that in a bit)—family Christmas video that has gone viral. I’ve seen media reports telling me that the video puts my family’s Christmas card to shame or makes ours look lame. People think it’s absolutely adorable.
Well, you know what? My family’s plain ol’ Christmas card features my family…and I can honestly say that none of us are as lame as that uninspired, unoriginal video. Here’s the other thing…my family’s Christmas card was made to simply wish our friends and families a Merry Christmas—that’s it. The “Xmas Jammies” video was designed to go viral as a promotional tool for the communications business run by the husband and wife, Penn and Kim Holderness, called Greenroom Communications. In fact, the video is posted to the company’s YouTube channel and you will clearly see these words under the video:
Want a video like this for your family or company? Holla at us: firstname.lastname@example.org
Which begs these questions:
Do I want my family to look completely obnoxious and better than everybody else in a video that goes viral around the world?
No thanks…I’ll pass.
Do I want a video that exploits my children and is more of a commercial for my business than an actual heartfelt family Christmas video?
Um…again, no. That seems slimy.
Finally, do I want a video that’s going to potentially get me sued by record labels, music publishers, Will Smith and The Whispers, whose 1980 hit “And the Beat Goes On” is the primary sample at the heart of “Miami”?
WHAT?! HELL, NO!
Let’s talk about this last part. Many people believe that if you simply put different lyrics to a popular song, it is considered a parody, which is traditionally considered fair use of copyrighted material. But guess what? That is not how the U.S. Supreme Court has described parody.
In a guest post for Forbes.com published in 2012, intellectual property lawyer Kenneth Liu of McLean, Va.-based Gammon & Grange discussed the legality of all the so-called parodies going around of Psy’s viral hit “Gangnam Style.” While many could be considered parody, many of the videos made in response to “Gangnam Style” were not, in fact, parodies and could have easily faced legal challenges if Psy and other rights-holders chose to go that route.
Liu cited one of the most famous cases involving a parody challenged by a copyright holder, Campbell v. Acuff-Rose Music, Inc. Back in the late 1980s, the rap group 2 Live Crew wanted to record a parody of the Roy Orbison classic, “Oh Pretty Woman.” 2 Live Crew had asked for permission to use elements of the original for the parody, but the rights-holder, Acuff-Rose Music, denied the request. However, feeling that it was protected from copyright infringement as a parody, 2 Live Crew recorded the song anyway and released it on their 1989 album, As Clean as They Wanna Be.
Acuff-Rose Music sued 2 Live Crew for copyright infringement and the legal battle went back and forth. After 2 Live Crew scored a victory in a district court decision, Acuff-Rose Music won a decision in the Court of Appeals. The case went to the U.S. Supreme Court in 1993. In early 1994, the Supreme Court reversed the Court of Appeals decision and remanded the case. However, the Court determined that 2 Live Crew’s “Pretty Woman” was a parody of “Oh Pretty Woman” and constituted fair use of copyrighted material.
In addition to determining that the 2 Live Crew song was targeted at a completely different market and that it would not substantially undermine sales of Orbison’s original, the Supreme Court said that 2 Live Crew’s version met the definition of parody. According to Liu, the “key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.”
More importantly, the Court pointed out the difference between parody and satire, which is generally not accepted as fair use. As Liu wrote in his 2012 Forbes.com guest post:
A parody is a work that imitates the characteristic style of another artist or his work for comic effect or ridicule…Many artists believe they are making parodies when they borrow someone else’s work to make fun of something, but they are actually only making satirical use of the other work. And it is this act of “borrowing” another work that is infringing. The Supreme Court essentially stated that borrowing another work for the purpose of satire is lazy — it avoids “the drudgery in working up something fresh.”
So let’s examine “Xmas Jammies” and see if it meets the criteria for a parody based on the words above. Well, right off the bat, the lyrics are not parodying Will Smith’s “Miami.” The Holderness family—those self-professed media experts who want to make you your own copyright-infringing viral video—simply wrote new lyrics to a copyright-protected song. Really, it’s not even satire. They simply—and lazily—”borrowed” a copyright-protected song and made it their own. And the song they “borrowed” is built upon a sample of The Whispers’ 1980 hit “And the Beat Goes On.” Will Smith received permission to use that sample for “Miami,” but someone else wanting to use that sample would have to obtain their own permission to do so. In essence, the Holderness family really needed to get all the appropriate licenses to use two different songs for “Xmas Jammies.”
Unless the Holderness family obtained the rights from Will Smith, The Whispers and—I believe—the publishing rights holders of both “Miami” and “And the Beat Goes On”—which I seriously doubt (the lack of attribution on the video’s YouTube page is telling)—the video that everyone is raving about is actually an obnoxious, far-reaching violation of copyright law. The fact that “Xmas Jammies” was published on Greenroom Communications’ YouTube channel means that this was produced simply to attract visitors to a commercial entity. There is no way that using copyrighted material in a promotional tool for business will pass a “fair use” test.
Nobody seems to have noticed any of this…yet. But I’m pretty sure as the YouTube hits keep climbing and Greenroom Communications starts profiting from the exposure, you’re going to see the rights-holders of “Miami” and “And the Beat Goes On” start filing lawsuits.
Sorry to be a grinch and I don’t mean to rain on the Holderness family’s parade, but “Xmas Jammies” shouldn’t be celebrated. In fact, it represents all that is wrong in this current climate of “affluenza” and an overinflated sense of entitlement. You can’t just steal the copyright-protected, creative work of others for what is essentially a commercial for a business and innocently play it off as your family’s video Christmas card…and then gain fame (or infamy) and have your company profit from it. You should have to play by the rules like everybody else. Just because you are able to do something with modern technology doesn’t mean you legally can.
Also, if you want to see the video, you can find it on YouTube. I’m not contributing to the insanity by linking to it.