Parodies And Copyright Law: A Fine Line To Walk

The use of copyrighted material in parodies is a contentious issue. While parodies are more likely to be considered fair use, there is no steadfast set of factors to determine whether a work qualifies as a parody. The four-factor fair use analysis laid out in Section 107 of the Copyright Act is often used to determine whether a parody constitutes fair use. These factors include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the new use in relation to the original work, and the effect of the new work on the market for the original. Parodies that are deemed fair use under this analysis are protected from copyright infringement claims. However, it is important to note that the determination of whether a work is a parody depends on the current case law, and creators should consult a copyright attorney before publishing any work that may contain copyrighted material.

The purpose and character of the use

• Has the new work been created for commercial or non-commercial purposes? While not every commercial use is presumptively an unfair use, this criterion emphasizes a preference for granting fair use to those works that are created for non-commercial or educational purposes.
• Does the user's use of the copyrighted work conform to the fair use purposes as set forth in Section 107, i.e., criticism, comment, scholarship, research, news reporting, or teaching? The burden of proof is usually much easier to demonstrate if the new work is for one of the "favored" purposes enumerated in Section 107. However, this does not necessarily mean that other uses of the new work will result in a finding of fair use of the original copyrighted work.
• What is the degree of transformation from the purpose or function of the copyrighted work as compared to the purpose or function of the new work? This criterion analyzes the degree of transformation accomplished by the new work by determining whether the new work has a different purpose or character than the original. For example, does a parody accomplish a transformative purpose by adding something entirely new to the copyrighted work, or does the new work merely supplant the original? Therefore, the crucial issue in determining the transformative nature of the new work is whether the parody has altered the copyrighted work by adding new expression and meaning to the original.

In the case of 2 Live Crew's parody of the song "Oh, Pretty Woman", the United States Supreme Court determined that the first factor, the purpose and character of the use, favored the rap group because a "parody has an obvious claim to transformative value". The court ruled that a "parody, like other comment or criticism, may claim a fair use".

The nature of the copyrighted work

Another important consideration is whether the original copyrighted work has been published or remains unpublished, as courts have been far less willing to sanction the unauthorised use of an unpublished work as fair use.

The amount and substance of the new work

The third factor in determining whether a work is fair use is the amount and substance of the new work in relation to the copyrighted work as a whole. This factor analyses the quantity and quality of the copied material. The courts will evaluate whether the user of the original copyrighted material has taken any more of the original work than was necessary to achieve the purpose for which the material was copied.

The Ninth Circuit has adopted the "conjure up" test, which permits a parodist to make fair use of a copyrighted work if they take no more than is necessary to "recall or conjure up" the object of their parody. However, there is no requirement that parodists take the bare minimum amount of copyrighted material necessary to conjure up the original work. The success of a parody depends on its use of the original work, and its "art lies in the tension between a known original and its parodic twin".

In the case of Luther Campbell and 2 Live Crew's parody of the song "Oh, Pretty Woman", the Supreme Court ruled that the parody could legitimately undercut the market for the original song and any derivative works, but that the rap music threatened to illegitimately replace a derivative work market that belonged to the copyright owner of "Oh, Pretty Woman". The Court remanded the case to the trial court to decide whether the quantity of copying was excessive.

The effect of the new work on the market for the original

The fourth factor in determining whether a new work is considered a "fair use" parody is the effect of the new work on the market for the original. This factor considers the degree of market harm caused by the new work and the potential market harm that may arise if the type of use became widespread.

The fourth factor evaluates the potential as well as actual financial harm caused to the original copyrighted work, as well as any harm that may be caused to any existing or possible future derivative works. The United States Supreme Court has stated that this factor is the most important element in determining fair use. However, a more recent Supreme Court decision appears to have limited this finding.

When the new work becomes a substitute for, or makes the purchase of the original copyrighted work unnecessary, it is highly unlikely that the courts would sanction such use as being a fair use of the original work. The courts have expressed this standard by finding that an unauthorized use is not a fair use when the unauthorized use diminishes or negatively impacts the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work.

Although this factor does not presume that all commercial gain will automatically be an unfair use, it does establish a high threshold of proof for the copier to demonstrate that the underlying work was not financially damaged.

In the case of Dr. Seuss Enterprises, L.P. v. ComicMix, the court noted that when considering the market for potential derivative works, it "includes only those that creators of original works would in general develop or license others to develop". This scope included mash-up books, like the one created by ComicMix. The court observed that although Dr. Seuss Enterprises' licensed works had not included mash-ups of the same type as ComicMix's book, the book invaded the potential market. Therefore, the court held that ComicMix's fair use defense failed.

The difference between parody and satire

Parody and satire are two forms of creative expression that are viewed differently in the eyes of the law. Both parody and satire employ humour in commentary and criticism, but the key difference is their purpose.

A parody imitates the style of a particular creator or work, often with deliberate exaggerations, for a comedic effect. For example, most of "Weird Al" Yankovic's songs are parodies of original material. A parody is a form of satire that mirrors a specific work. For instance, the movie "Space Balls" is a "Star Wars" parody.

On the other hand, satire uses humour, irony, exaggeration, or ridicule to expose and criticise people's stupidity or vices, often in the context of contemporary politics and other topical issues. Satire does not need to be based on an existing work and can stand on its own. For example, "The Onion" is a satirical online "news" paper.

While both parody and satire incorporate criticism and commentary, only parody may be considered fair use under copyright law. This is because a parody, by definition, is a comedic commentary about a specific work and requires the imitation of that work. In contrast, satire does not necessarily require the imitation of a copyrighted work to make its point. Therefore, parodies are more likely to be considered fair use than satires.

However, it is important to note that not all parodies are created equal, and each one must undergo a fair use analysis to determine whether it constitutes fair use. This analysis considers factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use in relation to the original work, and the effect on the potential market for the original work.

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