Parody: Fair Use Or Copyright Infringement
It has been a long-standing practice to poke fun at our cultural icons, symbols, public figures and celebrities. A parody exists when one imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect. Parody, as a method of criticism, has been a very popular means for authors, entertainers and advertisers to communicate a particular message or point of view to the public.
A parody, because it is a method of criticism, must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized, made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.
Since copyright law prohibits the substantial use of a copyrighted work without permission of the copyright owner, and because such permission is highly unlikely when the use is to create a parody, it may be necessary for the parodist to rely on the fair-use defense to forestall any liability for copyright infringement. However, the fair-use defense if successful will only be successful when the newly created work that purports itself to be parody is a valid parody.
Another line of defense that may be available for parodists are the free speech principles incorporated in the First Amendment. Historically courts have been sensitive to the interaction between parody as a means of entertainment and as a form of social commentary and criticism and First Amendment values. The public interest in such expression could be construed as outweighing the rights of the copyright owner. Entertainers have successfully invoked free speech principles to present wide-ranging artistic expression. However, when commercial gain appears to be the primary motive such as in movies, books, songs, plays and visual art the parodist's work and its defense under the First Amendment and fair use doctrine has frequently resulted in a number of court decisions that are seemingly irreconcilable.
The courts have continually struggled with parody cases when ascertaining whether a particular parody falls within the parameters of fair use or is instead copyright infringement. The fair use section of the Copyright Act specifically enumerates criticism as one of the purposes for which the fair use defense was contemplated, but should this imply that a parody should have more extensive latitude than other types of creative works when the fair-use defense is invoked? If parody fails to be protected by the fair use doctrine would this then result in the disappearance of parody as a form of social criticism and comment? What would happen to the parody genre if the parodist is unable to obtain permission to use a parodied work and is then failing to obtain permission is unable to successfully invoke the fair use defense? Should the parody fair-use defense be made more expansive to ensure that copyright infringement does not prohibit a use that in all likelihood would not be licensed from the copyright owner?
FAIR USE ANALYSIS
The Copyright Act in Section 107 enumerates four "fair use factors" that must be analyzed to determine whether a particular use of a copyrighted work, such as a parody, is fair use. These factors are the (1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and (4) effect of the use upon the potential market for or value of the copyrighted work. A court when evaluating a fair-use defense takes into consideration each of the four factors as no single factor by itself is sufficient to prove or disprove fair use. The following discussion will describe the specific fair use criterion and provide an overview of the key issues involved in the analysis of the fair-use defense.
1. Purpose and Character of Use
The first fair use factor, the purpose and character of use of the original copyrighted work, evaluates the new work by taking into consideration the following criteria: (1) Has the new work been created for commercial or noncommercial purposes? Although not every commercial use is presumptively an unfair use, and therefore conclusively determinative against fair use, this criterion emphasizes a preference that fair use will be granted to those works that are created for noncommercial or educational purposes rather than for commercial purposes. (2) 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 proving fair use 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 uses of the new work, other than those enumerated in Section 107, will not result in a finding of fair use of the original copyrighted work. (3) 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 different character than that of the original copyrighted work. For example, does a parody accomplish a transformative purpose by adding something entirely new to the copyrighted work or does the new work only supplant the original copyrighted work? Therefore, the crucial issue in ascertaining 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 copyrighted work.
2. Nature of Copyrighted Work
The second fair use factor, the nature of the copyrighted work, recognizes that certain types of works are simply more deserving of copyright protection than other types of works and consequently establishes the scope of copyright protection that should be afforded the original copyrighted work. The scope of fair use is greater for an "informational work" that is designed to inform or educate, such as a work of facts, information, scholarship or news reporting, than it is for a more "creative work", such as a work of fiction, art or music, that is designed to provide entertainment. Another important consideration is whether the original copyrighted work has been published or remains unpublished as the courts have been far less willing to sanction as fair use the unauthorized taking of an unpublished work.
3. Amount and Substantiality of the Portion Used of the Copyrighted Work
The third factor analyzes the amount and substantiality of the copying in relation to the copyrighted work as a whole. The crucial determination is whether the quality and value of the material copied from the original copyrighted work is "reasonable" in relation to the purpose of copying. Regretfully, there is no black and white rule that sets forth an absolute ratio or quantity of words that may be used of the original work that would ensure a finding of fair use. Instead there have been circumstances where a court has found that the use of an entire work was fair use while under different circumstances the use of a small fraction of a work failed to qualify as a fair use. This factor not only evaluates the quantity that has been copied but also the quality and importance of the copied material. The courts when analyzing this factor 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 from the original work.
4. Effect Upon Potential Market or Value of the Copyrighted Work
The fourth factor, the effect upon the potential market or value of the copyrighted work, analyzes the extent of harm that is caused by the new work to the market or potential market for the original copyrighted work. This factor evaluates the "potential" as well as "actual" financial harm that is or may be done to the original copyrighted work, as well any harm that may be caused to any existing or possible future derivative works. The United States Supreme Court at one time appeared to declare that this factor was the most important element in determining fair use but a more recent Supreme Court decision that will be discussed shortly appears to have limited this finding. However, when the new work becomes a substitute for, or makes the purchase unnecessary of the appropriated original copyrighted work then 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.
PARODY FAIR-USE DEFENSE: OH, PRETTY WOMAN
The United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) stated in no uncertain terms that a parody as a form of criticism or comment could be fair use of a copyrighted work. Oh, Pretty Woman is a rock ballad written by Roy Orbison and William Dees. Luther Campbell and his musical rapper group, 2 Live Crew, wrote a rap song entitled Pretty Woman that had substantial similarities to the Orbison/Dees song. 2 Live Crew attempted to obtain permission for their parody from Acuff-Rose, the publisher of Oh, Pretty Woman, but were refused permission. 2 Live Crew then proceeded without permission to release their rap song and accorded Orbison/Dees with authorial credit and listed Acuff-Rose as the publisher. Acuff-Rose then brought a lawsuit, which at the trial court level ruled in favor of 2 Live Crew based upon its fair use parody defense. This decision was reversed on appeal when the Sixth Circuit ruled against the fair use parody defense because of the commercial nature of the 2 Live Crew rendition and the presumption of market harm that the rap rendition might cause for the Orbison/Dees song. The Sixth Circuit's decision was then appealed to the Supreme Court.
The Supreme Court accepted 2 Live Crew's song as a parody because the rap song mimicked the original to achieve its message and because it "reasonably could be perceived as commenting on the original [Oh, Pretty Woman] or criticizing it, to some degree." The Court then had to decide whether a parody such as Pretty Woman could claim protection from copyright infringement liability under the scope of the fair use doctrine. To ascertain whether Pretty Woman was protected by the fair-use defense the Court proceeded to evaluate the four fair use factors.
The Court determined that the first factor, the purpose and character of the use, favored 2 Live Crew because a "parody has an obvious claim to transformative value" and the rap song was certainly transformative in that " it provid[ed] social benefit, by shedding light on an earlier work, and, in the process, creat[ed] a new one." Therefore, under this factor, even though Pretty Woman certain had as its motivation commercial gain, the Court ruled that a "parody, like other comment or criticism may claim a fair use under [Section] 107 [of the Copyright Act]." Justice Souter stated that the threshold question involving a parody fair-use defense "is whether a parodic character may reasonably be perceived. ... It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works."
The second factor, the nature of the copyrighted work, the Court decided was not of much help in this matter since a parody by its very nature would only be based upon an "expressive" work.
The Court's analysis of the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, stated that the authors or copyright owner of the original work would normally refuse to license or grant permission to a parodist to parody the original work. Based on this finding the Court then excluded "parody licenses" as a potential market that could be effected by a parody use. The Court then distinguished that 2 Live Crew's Pretty Woman consisted of two separate elements, (i) the parody of Oh, Pretty Woman and (ii) the original rap music itself. In distinguishing these elements the Court decided 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. Because there was no evidence on what might be "the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of Oh, Pretty Woman, the Court remanded this issue to the trial court for its decision on this matter.
As to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work, the Court indicated that a parody presents a unique difficulty when evaluating the amount of copying because the success of a parody depends upon its use of the original work while its "art lies in the tension between a known original and its parodic twin." The Court then reverted to the "conjure up" test that would deny a finding of fair use under this factor only when the parodist "has appropriated a greater amount of the original work than is necessary to 'recall or conjure up' the object of the [parody]." Traditionally the third factor weighs against an infringer when the heart of the original work has been copied, but it is the heart of the original that "most readily conjures up the song for the parody, and it is the heart at which parody takes aim." The question for the Court then became how much further could the parodist go in copying the original once the heart of the original was used. The Court, as did the trial court, believed that 2 Live Crew did not use any more lyrics than were necessary from Oh, Pretty Woman and therefore ruled that the third factor favored 2 Live Crew's fair use defense, but since the Court had already remanded the case on the fourth factor it then also decided to remand on the question of whether the quantity of copying was excessive or not.
The importance of the Acuff-Rose case, even though segments of the case were remanded for further findings was that the Supreme Court reached the unequivocal conclusion that a parody falls within the scope of the fair-use defense. A future article will discuss two of the more recent cases involving parody and the fair-use defense, Dr. Seuss Enterprises, L.P. v. Penguin Books U.S.A., Inc. (commonly referred to as The Cat In The Hat case) and Leibovitz v. Paramount Pictures Corp. (commonly referred to as the Naked Gun case) and will draw conclusions and provide guidelines relating to parodies and the fair-use defense that may be of assistance to both author and publisher.
This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific publishing issues and projects.