The "Mad Magazine Exception"

[Further update (Shameless Plug Department), July 2009: If you're a fan of Frank Jacobs' work, here's an homage to the man I did a couple of years ago. "Maria" is one of the tunes Jacobs repurposed most often.]

[Update, Saturday 1/31: Since I posted this I've gotten a lot of traffic from Google searches specifically about Frank Jacob's "Blue Cross" song. I'd be really grateful if visitors could leave a comment telling me what it was about the song, or the surrounding story, that piqued your curiosity. I know why I think it's worth noting--why do you think so? I'd like to hear your story. Thanks. -bn]


Oregon Public Broadcasting is airing a series called "Make 'Em Laugh: The Funny Business of America." It's hosted by Billy Crystal, and underwritten in part by the Seinfeld Family Foundation, so you have to get used to Crystal's tuberous face in close-up and an apparent contractual obligation to remind viewers once per episode that "Seinfeld" was the funniest show in the history of television, possibly the universe. Such is often the way of these things.

It's mainly a collection of archival clips from film and television, each episode loosely wrapped around a theme, with narration by Amy Sedaris. Anyone whose performances simply never made it onto film very much, like Lord Buckley, is out of luck. As for the rest, there won't be enough of the figures you consider comedy gods, and there'll be far too much of the figures you think are already annoyingly overrated. Such is often the way of these things.

And you'll be reminded that there's nothing like commentary by an academic expert on pop culture or the biographer of a great comedian to bring the fun to a grinding, painful halt. Such is definitely the way of these things.

Last night's episode featured several minutes of footage of two of my own heroes: satirical songwriter Tom Lehrer and Mad Magazine song parodist (and obituary writer) Frank Jacobs. Lehrer is becoming increasingly available on YouTube, but seeing Jacobs in the flesh, rather than simply in print, was an unusual treat.

Especially since he told the story of Irving Berlin et al. v. E.C. Publications, Inc. The short version is this: The 1961 "Fourth Annual Edition of More Trash Mad" (click on cover image to enlarge) included a 20-page "Sing Along With Mad" book of parody song lyrics, including this one, which--to my delight--Jacobs sang on the show last night:

BLUE CROSS
A bad experience with a medical coverage program.

Sung to the tune of: "Blue Skies"

Blue Cross
Had me agree
To a new Blue Cross
Policy!

Blue Cross
Said I would be
Happy that Blue Cross
Covered me!

Then I took a fall,
Leg in a splint;
They said that I
Should read the fine print!

When a very high
Fever I ran,
They told me I
Took out the wrong plan!

That's Blue Cross!
There seems to be
Plenty for Blue Cross!
None for me!

(Silly, yes, but on the other hand it expresses a fundamental truth about American health care that a lot of people haven't caught up with almost half a century later. Back off.)

Irving Berlin, who wrote "Blue Skies," took exception and, with several other songwriters who'd gotten "the treatment," sued Mad's parent company for copyright infringement. The case made its way to the Supreme Court, which refused to hear it (who could blame them!), letting the Circuit Court ruling stand. The result was a principle carved out of intellectual property law, known as "The Mad Magazine exception," establishing parody as protected speech.

From the opinion by 2nd Circuit Court Judge Charles Metzner:

The validity of plaintiffs' copyrights has never been challenged, and we need concern ourselves here only with the nature, purpose and effect of the alleged infringements. The parodies were published as a 'special bonus' to the Fourth Annual Edition of Mad, whose cover characterized its contents as 'More Trash From Mad -- A Sickening Collection of Humor and Satire From Past Issues,' and almost prophetically carried this admonition for its readers: 'For Solo or Group Participation (Followed by Arrest).' Defendants' efforts were billed as 'a collection of parody lyrics to 57 old standards which reflect the idiotic world we live in today.' Divided into nine categories, ranging from 'Songs of Space & The Atom' to 'Songs of Sports,' they were accompanied by the notation that they were to be 'Sung to' or 'Sung to the tune of' a well-known popular song -- in twenty-five cases, the plaintiffs' copyrighted compositions. So that this musical direction might feasibly be obeyed, the parodies were written in the same meter as the original lyrics. [...]

While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants' efforts were to 'recall or conjure up' the originals; the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a 'substantial' taking, if that standard is not to be woodenly applied. Similarly, the fact that defendants' parodies were written in the same meter as plaintiffs' compositions would seem inevitable if the original was to be recognized, but such a justification is not even necessary; we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter.

(Also featured in the complaint, and the appeals court opinion, is a parody of "A Pretty Girl is Like a Melody" that must be read aloud to be appreciated properly. I like to imagine Judge Metzner's puzzled clerks listening outside the door of his chambers while he wrote this opinion--the clackety-clack of the typewriter, then some very unjurisprudential giggling, then more clatter of the typewriter . . . .)

Activists for the left from Alinski to Ivins have long insisted that, if you're going to fight for your rights, you might as well have fun doing it. Such is often the way of these things, too.