Berlin v. E.C. Publications, Inc.

Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), was an important United States copyright law case decided by the United States Court of Appeals for the Second Circuit in 1964 involving the right to parody a well-known melody.

Mad magazine had published a special edition in 1961 titled More Trash from Mad No. 4, which featured a songbook containing 57 parody lyrics 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. 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, T.B. Harms, and Leo Feist. Several of Berlin's compositions were at the heart of the dispute, but the complaint also cited songs by Jerome Kern, Cole Porter, Richard Rodgers, Lorenz Hart, and Oscar Hammerstein II.

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). The court ruled in E.C.'s favor on all but two of the parodies—"There's No Business Like No Business" and "Always"—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."

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