The Fair Use Doctrine provides a way for someone to use a copyrighted work—such as a photograph, song, or film clip—without having to obtain the copyright owner’s permission first, and without getting in trouble for copyright infringement. The most common types of Fair Use involve criticism or commentary. If, for example, I wrote a blog post criticizing an article that appeared in the newspaper (or on its website, really), the Fair Use Doctrine would allow me to use excerpts from the text of that article. The same would apply if I were critiquing a photograph or a film, and wanted to use the photograph or a clip from the film as part of my critique.
While criticism and commentary are the most common examples of the Fair Use Doctrine, the most fun example is most certainly parody.
A quick note before we begin
To be clear, this information is most likely to apply to work you create for yourself, rather than work you do as a freelancer for a client. The examples of parody I will present here mostly involve acceptable uses of copyrighted works without the owners’ permission. It is almost always advisable to seek permission whenever possible.
If you are a child of the ‘80s like me, you might think of “Weird Al” Yankovic as the king of music parody, at least in American society. Weird Al has always obtained permission from copyright owners—which might be the artist or the record label—for the songs he parodies.
What is parody?
There is no distinct legal definition of a “parody,” so when talking about parody and the Fair Use Doctrine, we have to look at what courts have held in past copyright cases. Since that could fill multiple volumes, I will just go straight to the case that largely established today’s legal standard for identifying parody, the U.S. Supreme Court’s 1994 ruling in Campbell v. Acuff-Rose Music, Inc.
The plaintiff, Acuff-Rose Music, owned the copyright to the Roy Orbison song “Oh, Pretty Woman.” The hip hop group 2 Live Crew (if you are a child of the ‘80s, you will remember them, too) asked permission to create a parody of the song. Acuff-Rose refused, but the group produced and released the song, entitled “Pretty Woman,” anyway. The company sued 2 Live Crew and its record label for copyright infringement, and the case made its way to the Supreme Court.
In a 9-0 decision, the Supreme Court held that “Pretty Woman” “may be a fair use within the meaning of” federal copyright law. The four factors used to determine if something is Fair Use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The court held that the character of the work was transformative, meaning that it took the copyrighted material and developed it into a new form. It also found that the commercial nature of the work did not preclude a finding of Fair Use. If we can derive a definition of “parody” from the court’s ruling, it might look like this:
– Builds or comments on the copyrighted work, rather than merely copying it;
– Makes the copyrighted work the focus of its commentary (by which I mean comedic commentary, really), rather than using the work to lampoon some other issue;
– Is a commercial product in and of itself, such as a track on an album, rather than a promotion for some other work; and
– Does not directly compete with, and is not likely to be confused with, the copyrighted work.
What is satire?
Satire differs from parody, and is not entitled to Fair Use protection. The difference between the two is, once again, hard to pinpoint. A work of parody is typically based directly on another specific work, while a work of satire has a more general scope. In the Campbell decision, the Supreme Court described the distinction as:
Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.
The Court was not kind to the idea of using copyrighted work in satire without permission, describing it as an effort “to get attention or to avoid the drudgery in working up something fresh.”
How do I know if something is acceptable parody?
That question has no easy answer. A parody could be something that directly makes fun of a specific copyrighted work, such as:
– A song parody that takes the original meaning or purpose of a song and twists it somehow;
– A film that directly lampoons the story, characters, or other elements of another film; or
– A picture that is altered in a way that makes some sort of comedic comment on the original.
From this, it should be clear why lawyers and judges are often hesitant to delve into the actual interpretation of artistic works.
What are some other examples of parody that counted as Fair Use?
Here are but a few examples of works of parody that courts concluded were protected by Fair Use:
– A song performed during a burlesque musical that included portions of the song “Boogie Woogie Bugle Boy” (MCA Music v. Wilson, U.S. District Court, Southern District of New York, 1976)
– A Saturday Night Live sketch that used part of the advertising jingle “I Love New York” (Elsmere Music v. NBC, U.S. District Court, Southern District of New York, 1980)
– A composite photograph showing the head of actor Leslie Nielsen on the body of a nude, pregnant model, made to promote the film Naked Gun 33⅓: The Final Insult, and based on the photo of actress Demi Moore by the photographer Annie Leibovitz that appeared on the cover of Vanity Fair in August 1991 (Leibovitz v. Paramount Pictures Corp., Second Circuit Court of Appeals, 1998)
– A parody of Margaret Mitchell’s novel, Gone with the Wind, by Alice Randall entitled The Wind Done Gone (Suntrust Bank v. Houghton Mifflin Co., Eleventh Circuit Court of Appeals, 2001)
Coming soon: Open-source software licenses, how bloggers can avoid liability for defamation, and more stuff about copyrights.